Case Document

100%Judiciary

HCAL 1279/2019

[2024] HKCFI 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1279 of 2019

BETWEEN
	To Quang Tam	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 15 November 2018 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”). His application filed on 14 May 2019 is late. The deadline for the application is 15 February 2019. The delay is about 3 months. I shall deal with this issue below.

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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 is a national of Vietnam. He was discovered by Immigration Department during a premises search on 17 August 2015 and upon investigation, he admitted he illegally entered Hong Kong on the same day. He raised a non-refoulement claim on 18 and 28 August 2015 on the basis that he would be harmed or killed by a creditor due to a loan dispute.

5.According to the applicant, he decided to start a fish business in February 2013 and approached the creditor as he was introduced by his cousin. The loan was eventually obtained in the sum of 400 million Vietnamese Dong and the monthly interest was two million Vietnamese Dong. The fish business was thriving initially but in around May 2013, a storm ravaged the region and the business failed. He could not repay the loan thereafter. The creditor began to visit the applicant’s home and made death threats. The applicant did not report this matter to police as he believed the creditor had influence in Vietnam. In the beginning of 2015, he was physically assaulted by the creditor’s henchmen whilst he was walking on the street. He was hospitalized and the police came to take a statement. However, the police later informed him they were unable to identify the attackers and no substantive action was taken. After recovering from his injuries, he decided to flee to Hong Kong in fear of getting killed eventually by the creditor. Details of his claim are set out at [7] of the Notice of Decision dated 11 January 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 the applicant’s claim. In elaboration, the Director found that: (i) the threat from the creditor against the applicant was assessed to be low as there was ample opportunity to harm or kill him, but the creditor chose not to do so; and there was no supporting evidence that the creditor had sent to his henchmen to attack the applicant on the one occasion [14]; (ii) there was also no evidence to support that the creditor of someone of influence or had any connection with the government or police [15]; (iii) state protection would be available to him [16] – [18]; and (iv) internal relocation was a viable alternative [19].

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board. On 20 September 2018, the Board conducted an oral hearing for his appeal, during which he was legally represented. Having considered the evidence, the Board concluded that the applicant’s claim was not substantiated.

9.The Board found that the applicant’s to be deliberately vague and evasive at the hearing [80]. This included examples such as being unable to recall whether his family members were in Hong Kong or the fact that he had actually been in Hong Kong for weeks on the date of his rest (instead of arriving on the same date as stated before the Director) [78] – [80]. Furthermore, he was unable to recall the amount of money he had borrowed from friends and others in an attempt to repay the loan, which was a significant discrepancy in his evidence [73]. In conclusion, the Board found that the applicant had fabricated his entire claim regarding the creditor in order to establish a non-refoulement claim in Hong Kong [82]. As a result, the Board rejected the applicant’s claim and dismissed his appeal.

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

10.The applicant has filed Form 86 dated 14 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of this application, he reiterated his reasons for coming to Hong Kong without setting out any specific reason.

DISCUSSION

12.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 his application is on 15 February 2019. He has given no explanation for his delay. Nevertheless, I shall first consider the merits of the applicant’s case.

13.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).

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

15.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.”

16.For the reasons set out in paragraph 9, the Board rejected the applicant’s evidence in support of his claim. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

18.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 his application.

Dated the 12^th day of April 2024

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12/4/2024 To Quang Tam Applicant’s ref. no: Nil		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/4/2024 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5944/17/1/228/V883 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2928/16 (formerly RBCZ/13066/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)