Long Quy Thoang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1328/2019

[2024] HKCFI 1073

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1328 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.  Extension of time for the applicant to apply for leave to apply for judicial review of the Board’s Decision be granted;

2.  Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

3.  The applicant must within 14 days from the date of this Order issue the originating summons in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 August 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”). The application filed on 17 May 2019 is late as the time for the application expired on 29 November 2018. The delay is about 5 ½ months. This issue will be discussed 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, aged 48, is a Vietnamese. He entered Hong Kong illegally from Shenzhen on 6 April 2015. He surrendered to the Immigration Department on 8 April 2015 and he lodged a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”) because he failed to repay the loan.

5.According to the applicant, in October 2009, he wanted to engage in fishing business. He borrowed money from the creditor on 1 January 2010 to purchase a fishing vessel. The applicant claimed that the creditor was associated with the triad and his father was a government official. On a day in May 2010, his fishing vessel sank during typhoon. As a result, the applicant had to cease his fishing business and hence was no longer able to repay the loan.

6.At around June 2010, the creditor came to the applicant’s home, threatening him that he would be in trouble if he failed to repay the loan. Between June 2010 and October 2010, the creditor and his underlings attended the applicant’s home on a number of occasions. They threatened to kill the applicant and his family members and assaulted him with fists and kicks. There was even a time when the applicant’s head was hit by a glass bottle. He was taken to the hospital by his neighbours. The applicant did not report the assault to the police because he was poor and had no money to bribe them. He was also told that the police would not intervene with private debt dispute.

7.In October 2010, the applicant decided to relocate away from his hometown. He maintained contact with his wife, who informed him that the creditor was still looking for him and threatened to kill him if he failed to repay the loan. In November 2010, the applicant received insurance compensation for the fishing vessel. He therefore returned to his hometown and repaid part of the loan. After that, as he did not have the means to repay the remainder, he left his hometown again within half a month. In April 2012, the applicant went back to his hometown to visit his family. He only stayed for four days and then went to Mong Cai. In August 2012, he left for China and took a mandarin course there. The applicant returned to Vietnam after 12 months. Subsequently he entered China again and eventually sneaked into Hong Kong from Shenzhen on 6 April 2015.

8.The applicant considered internal relocation within Vietnam not viable because he could still be easily located by his creditor given his triad network within the country. He was also of the view that he could not seek protection from the authorities since the creditor’s father was a highly influential government official.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 July 2016 (“the Director’s 1^st Decision”).

The Director’s Decisions

10.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”).

11.By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment from the creditor and his underlings indicated that the applicant did not face a real and imminent risk of harm upon his return to Vietnam [13]; (ii) state protection will be available to him upon his return [14]-[18]; (iii) internal relocation is viable [19]-[24] and (iv) the applicant’s case failed to meet any of the requirement under BOR 3 risk [25]-[27], Persecution risk [28]-[31] or Torture risk [32]-[36].

12.In the Notice of Further Decision dated 22 March 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s Decision

13.The applicant appealed the Director’s 1^st and 2^nd Decisions to the Board. The hearing was scheduled on 8 June 2018, for which the applicant failed to attend. As the Board was satisfied that the Notice of Hearing had been duly served on the applicant, it decided to determine the appeal in his absence.

14.The Board considered that they were unable to evaluate the credibility of the applicant in his absence. They were also unable to determine the risks that he faced if he is refouled to Vietnam. Accordingly, the Board dismissed the applicant’s appeal and confirmed the Director’s 1^st and 2^nd Decisions.

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

15.The applicant has filed Form 86 dated 17 May 2019 for leave to apply for judicial review of the Board’s Decision.

16.In the affirmation filed by the applicant in support of his application, he said that he does not agree with the Board as his life will be in danger in his home country.

DISCUSSION

17.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. I shall consider the merits of the applicant’s case.

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

20.The question for this Court is whether the Board was correct to dismiss the applicant’s appeal for the reason that he did not appear before it for the hearing. The reasons of the Board are:

“9. The Appellant did not appear at the hearing. He has given no evidence to support what he has written in his Non-refoulement Claim Form, and I am unable therefore to decide on the credibility of his case.

10. It follows that I am unable to estimate what risks, if any, he faces if he is refouled to Vietnam or to decide whether or not he is entitled to non-refoulement under the provisions mentioned above.

11. His claim therefore must be dismissed.”

21.It is apparent that the Board had not taken into account of other materials in the hearing bundle, such as the Director’s Decisions before it dismissed the applicant’s claim.

22.For the same situation, this Court in Admad Adnan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2023] HKCFI 2407, 27 September 2023, held:

“31. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:

‘30. …In deciding whether there are “substantial grounds for believing” that the torture claimant would be in danger of being subjected to torture in the state in question, the Director and the adjudicator would need to make findings of primary fact.’

33. The Court of Appeal in MS v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2021] HKCA 979, Hon Barma, Au and G Lam JJA, 8 July 2021, held:

‘24. …it seems to us reasonably arguable that the Board erred in simply rejecting the applicant’s case due to his low general credibility and the lack of opportunity to test his credibility further through oral examination, …the Board should have assessed the substantive propositions of fact and make findings on them looking at the applicant’s case in the round. See SM (section 8: judge’s process) Iran [2005] UKIAT 00116; Re Hidayah [2018] HKCA 595 at [15]; TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31].’

34. It is therefore apparent that despite the absence of the applicant before the Board, the Board should, nevertheless, proceed to assess the materials and evidence before it and make a finding of the primary fact in relation to the facts of the claim, state protection and internal relocation, taking into consideration of the applicant’s conduct under section 37ZD of the Ordinance in relation to the credibility of the applicant. In terms of the factual basis of the applicant’s claim, some issues on which the Board finds incredible may not necessarily lead to wholesale rejection of the facts of the claim. If the Board finds against the applicant’s credibility on the facts of the claim, it should give reasons that such credibility issues undermine the factual basis of the applicant’s claim.”

23.The applicant therefore has realistic prospect of success in his intended application for judicial review of the Board’s Decision.

CONCLUSION

24.I extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. I also grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant must within 14 days from the date of this Order issue the originating summons in accordance with Order 53, rule 5 of the RHC.

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