Nguyen Thi Hue v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 659/2023

[2023] HKCFI 1897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 659 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

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

1.   The extension of time for the application for Judicial Review be refused; and

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

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 30 November 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 5 May 2023 is late.  The deadline for the application is 28 February 2023. I shall deal with this issue below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

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.  She was last arrested by the Hong Kong police on 14 July 2014.  On 16 July 2014, she was convicted of the offence of “breach of deportation order” and “remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.  On 7 August 2014, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her moneylender or her husband due to an outstanding debt.

5.The applicant took out a loan from her moneylender CO in 1996 for her fittings and building materials store.  Initially, she was able to repay the monthly interests.  However, in the end of 1999 and early 2000, the applicant’s business deteriorated and she started to default the loan payments.  CO visited the applicant’s house, setting the deadline for repayment to March 2000.  The applicant’s husband, upon knowing the debt, was furious and blamed the applicant who brought shame to the family. 

6.In June 2000, the death threats from CO started.  Her husband also assaulted her and threatened to kill her if she still failed to settle the loan.  A week later, three unknown men visited the applicant.  While they carried the wooden sticks, they did not attack the applicant but only threatened her.  Thereafter, the applicant escaped to Mong Cai and stayed for six months without encountering any problems.  In March 2001, she returned home.  Then, she escaped to Mong Cai again fearing that her husband would assault her and CO would locate her.  Later, the applicant fled to Hong Kong for the first time.  After she was deported, she returned home.  Yet, she was expelled by her husband.  Out of fear, the applicant fled to Hong Kong again and sought protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 1 September 2016 by the Director (the “Director’s First Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, Persecution risk and BOR 3 risk.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated a small future risk of harm [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable option for her [15].

9.In the Notice of Further Decision dated 8 August 2017, Director also found that the right to life of the applicant and her son, who is not an applicant in this action, would not be violated and rejected their claims on the BOR 2 risk (the “Director’s Second Decision”).

10.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”. 

The Board’s Decision

11.On 4 July 2022, the applicant filed a notice of appeal/petition against the Director’s Decisions.  Prior to the filing, on 12 March 2018, the Board received a letter from the applicant asking the Board to consider her situation on the humanitarian ground.  Nevertheless, the applicant did not take further actions on the letter [22]-[24]. 

12.In the grounds of appeal, the applicant stated that she returned to Vietnam and entered Hong Kong illegally on 26 December 2021.  She surrendered to the Immigration Department on 1 March 2022.  This statement was confirmed by the Immigration Department [25]. 

13.The Board considered that the applicant’s notice of appeal/petition was around 5 years out of time against the Director’s Decisions [28].  It noticed that the applicant did not provide any reasons for the delay [30].  Meanwhile, the Board considered the circumstances and found that the applicant failed to provide sufficient evidence in writing to satisfy the Board that she had met the statutory requirements [33].

14.As a result, the Board refused to exercise its discretion to allow the applicant’s late filing of appeal/petition against the Director’s Decisions.

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

15.The applicant has filed Form 86 dated 5 May 2023 for leave to apply for judicial review of the Board’s Decision.

16.In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

17.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 deadline of her application is on 28 February 2023. The delay is more than 2 months. She has given no explanation for her delay and her application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

18.The question for this Court is whether the Board was correct to refuse the applicant’s filing of the notice of appeal out of time. As the applicant has not provided any reason for her delay, the Board cannot be faulted for refusing her late application.

19.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review. Before this Form CALL-1 is finalized, the court received a letter from the applicant, saying that she wants to withdraw her leave application as her problem in Vietnam has been solved and she wants to return to Vietnam as soon as possible.

CONCLUSION

20.Therefore, 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 her application.

Dated the 2^nd day of August 2023

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