Pham Van Tuan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 307/2020

[2025] HKCFI 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 307 OF 2020

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 November 2017 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 expires on 28 February 2018. His application was filed on 4 March 2020, which is late for more than 2 years. This issue will be dealt with below.

2.The applicant did not ask for a hearing. 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.

4.The Director’s Decision and the Board’s Decision are in Chinese. However, the applicant’s affirmation and his reasons in a letter attached to Form 86 are in English. For the applicant’s convenience, I shall prepare this judgment in English.

The applicant

5.The applicant, aged 34, is a national of Vietnam. He came to Hong Kong illegally on 11 May 2015 and surrendered to the Immigration Department on 19 May 2015. He lodged his non-refoulement claim by written representation on the basis that, if refouled, he will be harmed of killed by his creditor.

6.According to the applicant, he had borrowed about 93 million Vietnamese currency from a creditor for the arrangement to study in North Sydney English College in Australia. The Australian government refused to issue study visa to him. When he demanded return of the money from the agency, which made the arrangement for him, the agency delayed payment and finally it closed down its business without paying back the money to him. The creditor send people to him for repayment of the loan. They did not assault him. However, they threatened to harm or kill him if he was unable to repay the money. Though he was not hurt physical, he was under immense stress. As a result, he came to Hong Kong to avoid the creditor.

7.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 30 November 2017 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.The Director refused his non-refoulement claim for the reason that it was unsubstantiated. He found that (i) the applicant’s risk of being harmed or killed if he returns to Vietnam is low [12]-[16]; (ii) state protection will be available [17]-[19]; and internal relocation is viable [20]-[23].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. Having considered the authority of ST v Betty Kwan [CACV 115/2013], the Board decided that the appeal could be dealt with without a hearing.

11.Having considered the evidence available to it, the Board agreed to the Director’s Decision and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 4 March 2020 for leave to apply for judicial review of the Board’s Decision.

13.In his statement attached to Form 86, the applicant has raised the grounds below:

(1) the assessment made by the Immigration Department of Hong Kong about Vietnam was completely based on a third party account and is therefore not in accordance with due process; and

(2) when he asked for documents relating to his torture claim, he was given a bundle 102 pages, out of which 79 pages are in Chinese, which is a deliberate attempt by the Immigration Department to undermine his judicial review presentation.

DISCUSSION

14.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.

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 had considered the Director’s Decision, and for the reasons given, it agreed to the Director’s Decision.

18.Those grounds under paragraph 13 will not assist the applicant. Ground (1) is irrelevant as the applicant has failed to tell why the way the Director assessed his claim in the way he alleged is wrong or prejudicial against his interest. Ground (2) is also irrelevant because the Chinese documents will not affect his application. He did not raise this issue with the Board. The Court will look at the substance of his application.

19.The applicant has not raised any valid ground to challenge the Board’s findings.

20.There is no reason for this Court to interfere with the Board’s Decision.

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.

DISPOSITION

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.

The applicant was unrepresented.