Le Van Trao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1318/2019

[2024] HKCFI 1074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1318 of 2019

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 16 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 entered Hong Kong illegally on 8 May 2016 and surrendered to the Immigration Department the next day. On the date of surrender, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Nguyen Van Ngoc due to an outstanding debt.

5.In short he borrowed a loan from the creditor in June 2014 for his seafood business. However, in around July or August 2015, a typhoon destroyed his business. As a result, since December 2015, he had been defaulting the loan payments. The creditor agreed to extend the deadline of repayment to April 2016. When the deadline approached, he received a phone call from the creditor who threatened to “deal with” it if he failed to settle the loan. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 16 February 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 conducts of the creditor indicated that the chance of him being harmed or killed was low [12]-[15]; (ii) state protection would be available to him [16]-[19]; and (iii) internal relocation was a viable option [20]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board. On 4 October 2018, the Board conducted an oral hearing for his appeal, during which he gave oral evidence [5].

9.The Board recapped the applicant’s claim [6]-[25]. Having considered the evidence, the Board rejected the applicant’s claim. In its reasons, the Board found that the applicant’s evidence was inherently inconsistent [26]-[31] and that the alleged threats from the creditor did not reach the level of severity that warranted a non-refoulement protection [32]-[33]. Meanwhile, the country of origin information supported the finding that both state protection and internal relocation were available to the applicant [44]-[51].

10.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

11.The applicant has filed Form 86 dated 16 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of this application, he did not raise any specific ground.

DISCUSSION

13.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. He has given no explanation for his delay. I shall first consider the merits 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 Decision 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 Board found the applicant’s evidence not reliable as it said in the Board’s Decision:

“30. Even if the Board were to disregard minor inconsistencies such as his employment history and his revelation at the hearing that he had started his seafood farming business as early as in 2013, the significant deviation between his written evidence and his oral evidence at the hearing in relation to some significant events cited above is such that the Board finds him to be an unreliable witness and that what had actually happened during the key events as presented by him to be incredible.”

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

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

CONCLUSION

20.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 29^th day of April 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