Tran Van Ai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 333/2022

[2022] HKCFI 2999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 333 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

1.  Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application filed on 12 May 2022 is late.[1] I shall deal with this issue below.

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), he appeared before the Court on 5 September 2022.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Vietnam. He entered Hong Kong illegally on 28 September 2015 and surrendered to the Immigration Department on 29 September 2015. On 28 September 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor and the gangsters.

5.According to the applicant, he borrowed a loan from his creditor in April 2014 to start his clothing business. They signed a loan agreement which stated that the applicant ought to repay the interest on monthly basis and also the whole sum within 5 to 7 years. In February 2015, he was defrauded by his friend and lost the money. Since then, he had been defaulting the payments. Feared that his creditor would harm him, he hid at the places of his friends’ until September 2015, during which he did not encounter any problems. Nevertheless, the creditor sent three followers to his mother’s house and threatened to kill him. They did not damage the properties or hurt his mother. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 28 December 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[13]; (ii) the creditor demonstrated no real intention to harm or kill him [14]; (iii) the dispute was a private monetary dispute [15]; (iv) state protection would be available to him [16]-[18]; and (v) internal relocation was a viable alternative [19]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 15 February 2019, the Board conducted an oral hearing for his appeal, during which he testified [11].

9.The Board examined the material aspects of the applicant’s claim. It noticed that the applicant gave little details about his clothing business. He also gave inconsistent accounts as to the nature of the business and the terms of the loan [26]-[27]. Meanwhile, the applicant had not adduced credible evidence on the existence of the loan [28]. As to his evidence on the alleged fraud, the Board was of the view that it was unreasonable [29]-[30]. The Board further found that the applicant’s evidence on the alleged threats was contradictory [31]-[34]. In any event, the Board found that, on the applicant’s own evidence, he or his mother was never harmed by the creditor [35]. In assessing the individual grounds, the Board concluded that there was no severe pain and suffering that attained a minimum level of severity and that there was not state involvement [44]-[46].

10.Further, the Board considered the country of origin information and concluded that state protection would be available to him [37]-[40] and that internal relocation was a viable option [55]-[60].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 12 May 2022 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he disagrees with the Board. He cannot return to his country as his life will be in danger.

DISCUSSION

14.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he understood the Director’ Decision and the Board’s Decision. He simply wants to stay in Hong Kong.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.The Board had assessed his case and was doubtful of his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

19.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 29^th day of September 2022

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1