Le Quang Hiep v. Torture Claims Appeal Board
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HCAL 114/2020 [2024] HKCFI 2861 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 114 OF 2020
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 20 April 2016 and surrendered to the Immigration Department on 22 April 2016 when he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim. 2.The Applicant was born and raised in Hai Phong, Vietnam. After leaving school he worked as a construction worker and a taxi driver in his home district. 3.In 2013 to meet his mother’s medical expenses he borrowed a loan from a local money-lender with monthly interest payments until discharge of the loan. 4.For the first 6 months the Applicant managed to make his interests payments to his creditor, but thereafter when he defaulted with his payments, his creditor then sent men to threaten him, and after a severe beating by those man who threatened to kill him next time if he still failed to repay his loan, the Applicant became fearful for his life and fled to Mong Cai in Quang Ninh Province, and on 18 April 2016 he departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 5.By a Notice of Decision dated 9 May 2018 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”). 6.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 his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant if resorted to, 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 96 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 his creditor to locate him. 7.On 30 August 2018 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 within receipt of the Director’s decision as required by Section 37ZS(1) of the Immigration Ordinance, and for which the Applicant gave the following explanations in section 5 of his Notice of Appeal:
8.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 Applicant’s Notice of Appeal, and by a decision dated 20 November 2019 the Board refused his application for late filing. 9.In its decision the Board found the deadline for the filing of the Applicant’s Notice of Appeal to be 25 May 2018, that he only filed it on 30 August 2018 which was more than 3 months late, that it was a serious and significant failure to comply with the rules, that his explanations of not knowing English or the address for the filing were not acceptable, and that there were no other matters known to the Board or revealed by the factual basis of his claim that might amount to special circumstances which might make it unjust not to allow the late filing of the Applicant’s Notice of Appeal. 10.On 10 January 2020 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 in which he just stated that he does not agree with the decision but without putting forth any proper ground for his intended challenge. 11.Nevertheless, given the seriousness of the issue at hand and the implication of the Board’s decision which resulted in depriving the Applicant the right to the second-tier screening process under the Unified Screening Mechanism (“USM”) of his non-refoulement claim by the Board due to a procedural breach, albeit a serious one, and in which his life and limb were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing the late filing of his Notice of Appeal. 12.While the Board was in my view certainly entitled to find the Applicant’s explanations for his failure to file his appeal within the required time not acceptable and that the delay was serious, but it also seems clear from paragraph 9 above ([15] – [19] of Board’s Decision) that the Board in refusing to allow the late filing of the Applicant’s Notice of Appeal failed to take account of the merits of his appeal or the substance of his non-refoulement claim as part of the relevant matters of fact within its knowledge under Section 37ZT(2)(b) of the Immigration Ordinance, as the law then was, and as held to be relevant by the Court of Appeal in Re Khan Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, with the judgments of both clearly available to the Board, and when Lisa Wong J in the latter case in giving the judgment of the Court explained:
13.For the same reasons I am also of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the ground that the Board failed to take account of the merits of the appeal or the substance of his non-refoulement claim as part of the relevant matters of fact within the Board’s 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. 14.Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision in refusing to allow the late filing of his Notice of Appeal on the ground stated above, and direct that he shall file and issue his 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 18th day of October 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
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