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

HCAL 365/2023

[2024] HKCFI 387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 365 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 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 May 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”). Her application filed on 10 March 2023 is late. I shall deal with this issue below.

2.The applicant did ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, she attended the hearing on 3 May 2023.

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 13 February 2021. On 10 March 2021, she was arrested by the police. On 9 April 2021, 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 Tran Manh Cuong (“TMC”).

5.In short, in April 2020, the applicant borrowed the loan from TMC for her father’s medical expenses. From April 2020 to July 2020, she was able to repay the monthly interests. In July 2020, she took out a second loan. However, the Covid-19 made her business deteriorate. In early October 2020, she defaulted the repayments. On three occasions, TMC together with his followers threatened and assaulted the applicant for the loan repayments. The applicant’s report to the police was of no avail. Out of fear, she fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 30 June 2021 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 the applicant’s 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 [11]-[13]; (ii) state protection would be available to her [14]-[16]; and (iii) internal relocation was a viable option [17]-[19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 October 2021, the Board conducted an oral hearing for her appeal, during which she was assisted by a Punti/Vietnamese interpreter [12].

9.The Board considered the country of origin information (“COI”), the applicant’s claim, and weighed the applicant’s evidence in the context of the COI [33]-[76]. Having considered the evidence, the Board found that the applicant’s evidence about the illegal moneylending and the threats and assaults from the moneylender was consistent with the COI [79]. However, the Board considered that the alleged terms of the loan, favorable to the applicant, were implausible [80]-[ 95]; that she was unable to provide a rough estimation of the medical expenses required [96]; that her evidence of obtaining the first loan was vague and lacked credence [97]; that her evidence about TMC equally lacked credence [98]; that her manner in testifying was evasive [99]; that her evidence about the details of the loan, such as the interests, the repayments, was lacking [100]-[105]; and that she failed to provide any documentary proof of her father’s medical condition [105]. In passing, the Board also noted that the applicant delayed in seeking protection [106].

10.In these circumstances, the Board concluded that the applicant’s claim lacked credibility. In any event, state protection and internal relocation were both viable options for the applicant [109]-[133].

11.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

12.The applicant has filed Form 86 dated 10 March 2023 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant had only attached a copy of the Board’s Decision, but did not set out any specific ground.

DISCUSSION

14.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 3 August 2022. The delay is more than 7 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.

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she did not understand the Board’s Decision. I explained the Board’s Decision to her. She confirmed she understood it and said that she did not say that the Board was wrong, but she wanted the Court to re-consider her case.

17.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.”

18.The Board had, for the reasons given in paragraph 9, supra, rejected her evidence and state protection was available to her and internal relocation was a viable option to her. It therefore dismissed her appeal.

19.There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

21.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 22^nd day of February 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