Vu Thi Binh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 332/2023

[2023] HKCFI 2161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 332 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 3 March 2023 is late[1]. This issue will be dealt with below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court deals with her application on the papers.

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 entered Hong Kong illegally on 26 August 2016. On 8 September 2016, she surrendered to the Immigration Department. On 5 January 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor due to the outstanding loan.

5.In short, the applicant borrowed a loan from the creditor for her seafood business in 2013. However, her business collapsed and she started defaulting the loan payments. Since July 2015, the creditor had been chasing her for repayments. She encountered the creditor and his followers twice and, in the second incident, she was almost drowned by the creditor. Out of fear, she eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 6 July 2017 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 her claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[19]; and (iii) internal relocation was a viable option [20]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 January 2019, the Board conducted an oral hearing for her appeal, during which she clarified certain matters in her claim [31].

9.Having considered the evidence, the Board found that the dispute was merely a loan dispute between the applicant and the creditor [33];[46]; that there was no evidence that the applicant was tortured [34]-[37]; that the creditor did not possess an intention to cause harm or even kill her [37]; that it was a pure speculation that she could not seek protection from the Vietnamese police [39]; and that internal relocation was a viable option for her [48]-[49].

10.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.The applicant has filed Form 86 on 3 March 2023 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant did not set out any specific ground.

DISCUSSION

13.As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file Form 86 is 20 August 2019. The delay is over three and a half years. The delay is therefore serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merit of the applicant’s case.

14.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).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The applicant has not raised any valid reason to challenge the Board’s Decision.

18.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

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

Dated the 29^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