Vu Van Thiep v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 578/2024

[2024] HKCFI 1696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 578 of 2024

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 19 December 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which is 19 March 2024. His application was filed on 10 April 2024, which is late for about 3 weeks. This issue will be dealt with below.

2.The applicant did not ask for a hearing. I shall deal with this 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 38, is a Vietnamese. He entered Hong Kong illegally on 18 May 2023 and was arrested by the police on 14 June 2023. The applicant made a non-refoulement claim on 21 June 2023. 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 a loan owed to him.

5.According to the applicant, he borrowed money from the creditor in December 2022 to startup his shrimp farming business. However, in January 2023, all his shrimps died due to plague. As a result, the applicant was unable to repay his loan instalments.

6.On 20 January 2023, the creditor went to the applicant’s home together with ten of his underlings. The applicant pleaded for time to pay and they agreed to give him five days’ time. He then reported the matter to the police, but they refused to help by reason that he did borrow money from the creditor. On 25 January 2023, the creditor returned with twelve of his underlings. Upon the applicant’s request for more time to repay, the creditor hit his back two times with a wooden stick. The creditor then left after threatening the applicant that he would send his underlings to assault him if he failed to repay the next day. The applicant reported the incident to the police again, but they still refused to assist as they considered this a private matter.

7.On 15 March 2023, the applicant relocated away from his hometown, where he stayed for two months until his sister informed him that the creditor became aware of his whereabouts. The applicant then moved elsewhere. When he last contacted his sister whilst in Vietnam, she told him that the creditor was still chasing for loan repayment. Eventually, with the arrangement of an agent, the applicant left Vietnam and sneaked into Hong Kong on 18 May 2023.

8.During a telephone conversation with his sister on 20 August 2023, the applicant was informed that the creditor was still after him. The applicant was of the view that he could not seek protection from the police because they were corrupt and he had no money to bribe them. He also considered internal relocation not viable because the creditor still managed to utilise his network to find him when he relocated previously.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 September 2023 (“the Director’s Decision”).

The Director’s Decision

10.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.By way of the Director’s 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 indicated that he had no real intention to seriously harm or kill the applicant [11]-[12]; (ii) there was no evidence of involvement from the Vietnamese authorities and that state protection would be available to him [13], [15]-[19]; (iii) internal relocation would be viable [14], [20]-[21] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[33] or Torture risk [34]-[37].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 29 November 2023, the Board conducted a hearing.

13.The Board considered that the claimed injury suffered by the applicant was far off from the requisite level of severity [55]-[57]. It also found that the problem he faced was private in nature, with no evidence of state involvement [69]. In any event, state protection and internal relocation would be available according to the country of origin information (“COI”) [43]-[51], [62]-[63], [73]-[79].

14.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [14]-[22], [52]-[72]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

15.The applicant has filed Form 86 on 10 April 2024 to apply for leave for judicial review of the Board’s Decision.

16.In his affirmation in support of his application, the applicant said that the Immigration (the Board) did not fully consider his background. His life will be in danger if he returns to Vietnam. He wants to remain in Hong Kong for protection.

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

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.The Board had considered his evidence and made reference to the COI before coming to its conclusion. The applicant has not been able to raise any valid ground to challenge the Board’s Decision. There is nothing amiss in the Board’s views.

21.In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

22.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 11^th day of July 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