Case Document

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HCAL 1875/2019

[2024] HKCFI 2027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1875 OF 2019

BETWEEN
	Luu Dinh Duong	Applicant
	and
	Torture Claims Appeal Board	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 the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

(1) Extension of time for the application for leave to apply for Judicial Review be granted;

(2) Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 August 2018 be granted;

(3) The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A); and

(4) The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 60-year-old national of Vietnam who was arrested in Hong Kong in 2011 for illegal entry and breaching a previous removal order issued against him by the Immigration Department, and for which he was subsequently convicted and sentenced to prison for 24 months, and shortly after his discharge from prison he was again arrested for theft, and upon his subsequent conviction and was sentenced to prison for another 8 months, he then raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by the local gangsters in his home village for assisting the police in arresting and convicting some of their members for murder. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Quan Do Son, Hai Phong, Vietnam. After leaving school he worked in various jobs, got married and raised a family with 2 children in his home district.

3.In April 2011 while he was employed as a staff in a dried goods shop owned by a female employer, the Applicant witnessed his employer being beaten by several men that she later died in the hospital.

4.With the Applicant’s eyewitness report the police later arrested those men who were members of a local gang, and with evidence given by him in court, those men were subsequently convicted and sentenced to lengthy imprisonments.

5.However, shortly thereafter the Applicant was confronted in the street by other members of the gang threatening to kill him for putting their fellow members in prison, but he managed to escape from the scene and went into hiding in his neighbor’s home.

6.On the next day he fled to the next town, and in late 2011 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 18 October 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local gangsters upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and such risk of harm is a localized one and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for those local gangsters to locate him.

9.On 23 May 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as his Notice of Appeal was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and for which he explained in section 5 of his Notice of Appeal that he lost the decision during moving house and it was much later that he was able to obtain another copy which accounted for the delay, and in section 2 of his Notice he also set out various grounds of appeal.

10.In pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Notice of Appeal, and by a Decision dated 28 August 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

11.In its decision the Board found the Applicant’s Notice of Appeal to have been filed almost 7 months late, and that he had failed to provide any documentary evidence in support of his explanation that he had lost the Director’s decision during moving house that the Board had no basis to exercise any statutory discretion to extend the time limit for the late filing of his Notice of Appeal.

12.On 4 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date, nor was he able to do so at the hearing of his application.

13.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.As the last day of the three-month period for him to file his Form 86 fell on 28 November 2018, the Applicant was therefore more than 7 months late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of more than 7 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that he was then in prison or detention and did not know how to make his application until later when he was able to get assistance form the welfare officer, but by then he was already out of time with his application.

16.The record shows that the Board’s decision was sent on the same day of 28 August 2018 to his then residential address without being returned through undelivered post, and even if the Applicant was indeed then or subsequently in prison or detention, of which he was unable to provide any further details or documentary evidence, he should be able to seek assistance from the welfare officers stationed in his detention or prison, and as such I am not satisfied that he provided a good or valid justification for his such serious delay.

17.As for the merits, if any, of his intended application, as noted above that the Applicant also failed to put forward any proper ground for his intended challenge either in his Form or at the hearing of his application, but given the seriousness of the issue at hand and the implication of the Board’s decision which denied the Applicant of the right to the second-tier screening process of his non-refoulement claim for protection by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach (albeit a serious one), the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing to allow the late filing of the Applicant’s Notice of Appeal.

18.Firstly, it would be relevant to again refer to Section 37ZT (2) & (3) of the Immigration Ordinance, as the law then was, in which the Board was to take account of the following matters in deciding whether to allow the late filing of a notice of appeal:

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of –

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.”

19.While the Board in the present case was certainly entitled to reject the Applicant’s explanation for his serious delay in the filing of his Notice of Appeal, it seems that in deciding not to allow such late filing, the Board failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge under subsection 2(b) of the Ordinance, as held by the Court of Appeal in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, and as Lisa Wong J in giving judgment of the Court in the latter case explained:

“23. … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be ‘unjust’ not to do so by reason of ‘special circumstances’: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019, [16] - [20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

20.For the same reason I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the basis that the Board in refusing the late filing of his Notice of Appeal failed to take account of the merits of the appeal as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Immigration Ordinance, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

21.In the premises, I extend time to the Applicant’s late application and grant leave to him to apply for judicial review of the Board’s decision on the ground as stated above, and accordingly direct that he shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 8^th day of August 2024

(Chung Lai Fan, Christine)
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 8 August 2024 Luu Dinh Duong 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 8 August 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 7221/17/5/227/V1365 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1825/16 (Formerly RBCZ 11714/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)