Dam Tuan Anh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1682/2021

[2024] HKCFI 29

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1682 of 2021

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 present 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 14 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. This issue will be dealt with 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 20 November 2023.

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

The applicant

4.The applicant, aged 30, is a national of the Vietnam. He was arrested by police on 28 July 2016 for illegally entering Hong Kong and was referred to the Immigration Department. He admitted that on 25 July 2016 he left Vietnam for China. On 27 July 2016, he came to Hong Kong from Shenzhen by boat. He is now being detained in Castle Peak Bay Immigration Centre.

5.On 24 August 2016, he submitted a written signification to request for non-refoulement protection on the ground that, if refouled, he will be harmed or killed by his creditor because he was unable to repay his loan.

6.Briefly, the applicant was running a crabs farm business. He had borrowed 300 million VND from a creditor called Nam. However, his business failed because of contamination of seawater and adverse climate. He was unable to pay the interest on the loan. Nam and his followers went to his home on a day in June 2015 for payment. The people brought with knives and swords. As he was unable to pay, they assaulted him. He was seriously injured. He suffered multiple bruises to his body and felt dizzy. They also threatened him that if he did not repay the debt, his family would be killed. He did not go to hospital as he could not afford the expenses. Nor did he report the matter to police for fear of trouble and detention. He went to live in another district where he worked as a casual worker. On 1 July 2016, he went home and found all crab larvae dead. He stayed at his friend’s home. In March 2016, he bumped into Nam and his followers. Nam told one of his followers to stab him on his thigh and they left. He was taken to hospital for treatment. He reported the matter to police, who said that they could not help as it was a trivial matter. In July 2016, he returned home. His mother told him that Nam had been looking for him and advised him to leave Vietnam. He took his mother’s advice and arrived in Hong Kong on 29 July 2016. Details of his story are set out in paragraph 7 of the Director’s Decision.

The Director’s Decision

7.As the applicant had made his claim on torture risk and was rejected, the Director considered his 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 the Director’s Notice of Decision dated 24 May 2017 (“the Director’s Decision”), the Director dismissed the applicant’s claim on all applicable risks for the reasons that: (1) his creditor did not have the intention of killing him as shown by his previous experiences of being hit and he only suffered not serious injuries and they did not harm his family members [13] –[14]; (2) it was only a monetary dispute between him and his creditor, the state was never involved [15]; (3) state protection would be available to him if he returned to Vietnam [17]-[20]; and (4) internal relocation was a viable option [21]-]27].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. The Board conducted a hearing on 24 October 2017 and the applicant had given evidence.

10.Having considered the applicant’s evidence, the Board made the findings below:

“72. … I find it implausible and do not accept that a money lender would have loaned the Appellant VND300,000,000 without requiring any security, in particular, that he was an inexperienced business operator without any track record…

73. Further, I find the core of his account, in particular the alleged assaults and fears lacked credibility. [the Board set out the inconsistencies of his evidence before the immigration officer and before the Board]

80. The accumulative effect of all these discrepancies was a clear indication that he sought to embellish his evidence in connection with some material issues during the hearing.

81. The Appellant was not able to account for the inconsistencies.

83. The Appellant’s claims about his fear of the loan shark is not credible. ... [the Board set out its reasons]”

11.The Board further found that state protection would be available to him [85].

12.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

13.The applicant has filed Form 86 dated 13 December 2021 for leave to apply for judicial review of the Board’s Decision.

14.The applicant said that he disagrees with the Board’s Decision and he wants to file judicial review against it.

DISCUSSION

15.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.

16.The deadline of his application is on 14 March 2018. The delay is about 3 years and 9 months. He has given no explanation for his delay and his application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits of the applicant’s case.

17.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).

18.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he does not want to return to Vietnam as he had borrowed money from the creditor and he cannot repay.

19.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.”

20.For the reasons given in paragraph 10, the Board did not accept the applicant’s evidence on the facts in support of his claim.

21.Converting VND300,000,000 into Hong Kong currency amounts to about HK$96,500. To say that it is implausible for the money-lender to lend this amount of money to an inexperienced crab farmer without security is arguable, short of the real situation of the local market and the terms of the loan, especially for loan-sharking.

22.Other than the above issue, the Board was entitled to form its views on the evidence, which this Court will not interfere with without valid reasons or evidence from the applicant. Taking into consideration of other factors, the Board is entitled to form its views against the applicant’s claim.

23.The applicant has raised no valid ground to challenge the Board’s Decision.

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

CONCLUSION

25.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 9^th day of January 2024

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