Nguyen Van Huynh v. Torture Claims Appeal Board

HCAL 1245/2019

[2023] HKCFI 2276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1245 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted;

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

3.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Vietnam who entered Hong Kong illegally on 8 June 2015 and surrendered to the Immigration Department on 11 June 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.  He was subsequently released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Thon Dau Can, Xa Duong Quan, Thuy Nguyen, Hai Phong, Vietnam.  After leaving school he worked as a farmer, got married and raised a family of 3 children in his home district.

3.In 1995 the Applicant and his wife started a seafood trading business by borrowing a loan from a local money-lender repayable within 10 years and with monthly interest payments until full settlement of the loan.

4.For years the Applicant managed to make his monthly interest payments from his business income, but after closing down his business in September 2014, he started to default with his loan repayments, and after being threatened by men sent by his creditor, his wife fled from the country for Hong Kong in late 2014, and followed by the Applicant on 5 June 2015 when he 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 18 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 25 November 2016 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 assessed the level of risk of harm from his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to repay his loan, that in any event it was a private monetary dispute between him and his creditor 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 95 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 part 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 creditor to locate him.

7.On 20 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision of 25 November 2016, but as his Notice of Appeal was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of his Notice of Appeal, and by a decision dated 3 May 2019 it refused to allow the late filing of the Applicant’s Notice of Appeal.

8.In its decision the Board found that the deadline for the Applicant to file his Notice of Appeal to be 12 December 2016, that he was late by more than 12 months late when he filed it on 20 December 2017, that such delay was unreasonable and unacceptable but for which the Applicant failed to provide any reasons or any documentary evidence in his Notice of Appeal despite a reminder for him to do so by the Board, and that there was nothing disclosed in the facts asserted by the Applicant that would amount to special circumstances to make it unjust not to allow the late filing of his Notice of Appeal.

9.On 9 May 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 being harmed or killed by his creditor over his outstanding debts but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.Nevertheless, given the seriousness of the issue at hand and the implication of denying the Applicant of the second-tier screening of his claim by the Board under the Unified Screening Mechanism (“USM”) in refusing to allow the filing of his appeal due to procedural breach, and that his life and limbs were said to be at stake, the Court shall adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the late filing of his Notice of Appeal.

11.While it is true that the Applicant had failed to provide any reasons or explanation in section 5 of his Notice of Appeal for its late filing, and that the Board was entitled to find such delay as substantial and unacceptable, but it is also clear that the Applicant did in section 2 of his Notice of Appeal set out his grounds of appeal of which the Board did not appear to have taken into account or of the decision of the Director attached to the Notice of Appeal so as to assess the merits of the appeal, of which the Board was required to do as part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Ordinance as the law then was, and as held to be necessary by the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, and in Re Qasim Ali [2019] HKCA 430, as Lisa Wong J in giving judgment of the Court in the latter case explained as follows:

“23. … 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 where 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.”  

12.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 in refusing to allow the late filing of his Notice of Appeal is reasonably arguable on the ground that it failed to take into account the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 37ZT (2)(b) of the Immigration Ordinance.  

13.Accordingly, I grant leave to the Applicant 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 this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and on the Director as interested party.     

Dated the 6^th day of September 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