Nguyen Van Tien v. Torture Claims Appeal Board

HCAL 2158/2019

[2023] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2158 OF 2019

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 Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 10 April 2019 be granted

2.  The application for leave to apply for Judicial Review be granted; and

3.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Vietnam who entered Hong Kong illegally on 23 May 2015 and surrendered to the Immigration Department on 26 May 2015 and raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his enemy over some personal disputes between them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born to a Vietnamese father and a Chinese mother and was raised in Hanoi, Vietnam. After leaving school he worked as a welder in his home district to make his living, but given that his mother was a Chinese, he was often discriminated by his fellow Vietnamese, and for which he frequently got into fights with them, and as a result had spent times in prison.

3.One of the men with whom he had fought many times even in prison was a local gangster who had subsequently sworn to kill the Applicant upon his release from his last imprisonment in 2014, and had sent his followers to the Applicant’s home looking to kill him, and as a result the Applicant was afraid to return to his home.

4.Fearing that his enemy would eventually be able to track him down anywhere in the country, the Applicant on 18 May 2015 departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 12 January 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found material inconsistencies and discrepancies in his evidence that his claim of fear of being harmed or killed by his enemy and followers that caused him to leave his country to come to Hong Kong was found doubtful, that even if real that the level of such risk of harm from his enemy upon his return to Vietnam was assessed as low due to the low intensity and frequency of past ill-treatment from his enemy, that in any event it was a private personal dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 96 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his enemy to locate him.

7.On 12 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was filed outside the 14-day period from the date of the decision being given to him under Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Notice of Appeal, and by a Decision dated 10 April 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

8.In its decision the Board found that the Director’s decision was sent to the Applicant’s lawyer from DLS on 12 January 2018, that the deadline for the Applicant to file his Notice of Appeal fell on 29 January 2018, that he only lodged his appeal on 12 June 2018 which was therefore late by more than 4 months, that his explanation for the delay stated in his Notice of Appeal of being sick at the time was devoid of the necessary details or particulars and without any supporting medical or documentary evidence that it was not accepted, and that he had failed to show any special circumstances that it would be unjust not to allow the late filing of his Notice of Appeal.

9.On 29 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just repeated his claim as before of fear of harm from his enemy if refouled to his home country.

10.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

11.As the last day of the 3 month-period for him to file his Form 86 fell on 10 July 2019, the Applicant was therefore some 19 days late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of 19 days may not be considered as insignificant, for which he explained at the hearing of his application that he never received the Board’s decision in the mail, and that it was only later when he reported on his recognizance that he was so informed by his immigration officer, but by then he was already out of time with his application.

13.The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate his bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for his delay.

14.As for the merits, if any, of his intended application, as noted above that the Applicant had failed to put forward any proper ground for his intended challenge, but given the seriousness of the issue at hand and the implication of denying him of the second-tier screening process of his non-refoulement claim over some relatively insubstantial procedural breach, and in which his life and limbs were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s decision in refusing to allow the late filing of his Notice of Appeal.

15.From its decision as noted above, while the Board was in my view correct to find that the Applicant had been more than 4 months late with his Notice of Appeal, and that in the absence of any further supporting evidence that the Board was also entitled to reject the Applicant’s reason or explanation of being sick for his such serious delay with his appeal, but in arriving at its conclusion to refuse the late filing of his Notice of Appeal, it seems to me that the Board had failed to also take account of the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 7ZT(2)(b) of the Ordinance, as the requirement then stood, and as held to be necessary by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA and in Re Qasim Ali [2019] HKCA 430, as Lisa Wong J in giving judgment of the Court in the latter case elaborated as follows:

“23. Further, … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

16.I should also note that those 2 decisions from the Court of Appeal had been delivered several days before the Board’s decision, and hence would be within the knowledge of the Adjudicator involved.

17.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the ground that in refusing the late filing of the Applicant’s Notice of Appeal, the Board failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Ordinance.

18.Accordingly, I extend time to the Applicant’s late application, and grant leave for him to apply for judicial review of the Board’s decision on the ground stated above, and direct that he shall file and issue the originating summons within 14 days of the decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 9^th 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