Nguyen the Hoang Anh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3174/2019

[2025] HKCFI 1852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3174 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2019 of the Torture Claims Appeal Board (“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 expired on 28 June 2019. His application was filed on 25 October 2019, which is late for more than 3 months. This issue will be dealt with below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 28 April 2025. I shall deal with his application on the papers.

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 is a national of Vietnam. According to the applicant, he claimed to have arrived in Hong Kong illegally on 26 December 2015 and surrendered to the Immigration Department on 28 December 2015. In due course, he lodged a non-refoulement claim.

5.The applicant’s claim was based on his fear of being harmed or killed by his creditor because of his inability to repay a debt.

6.According to the applicant, he was threatened by men carrying swords which damaged things in the applicant’s home but did not harm his family. He was later threatened by phone for repayment. Details of his claim are set out in Chinese at paragraph 6 of the Notice of Decision dated 13 March 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the absence or low intensity and frequency of the ill-treatment encountered was indicative of a small future risk of harm and that the creditor’s intention was only for repayment of the loan and not to seriously harm or injure the applicant [11-14]; state protection was available [15-17]; and internal relocation alternatives were available and reasonable [18-25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 10 January 2019, the Board conducted an oral hearing for his appeal, during which the applicant failed to attend the hearing. It decided to proceed on paper [2-6].

10.Having considered the evidence, the Board found that as the applicant failed to attend the hearing, the Board was unable to assess his credibility. [22] It therefore proceeded on the assessment on facts on the materials before it. [23-36] It concluded that there were no reliable evidence that there were any acts of torture inflicted on the applicant or any suffering of certain severity or gravity [36]. In any event, the Board was satisfied that there was sufficient state protection available to the applicant [47-56], and internal relocation was reasonable or not unduly harsh [78-86]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 dated 25 October 2019 for leave to apply for judicial review of the Board’s Decision. He did not put forth any ground in Form 86.

12.In his affirmation in support of his application, the applicant deposed that he did not agree with the Board’s Decision because his life is in danger in his home country, but again he did not put forth any grounds.

DISCUSSION

13.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.

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

15.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.”

16.For the reasons the Board has given above, the Board found that the applicant will not be subjected to any of the applicable risks if he returns to his country. The applicant has not raised any valid ground to challenge the Board’s findings. There is no reason for this Court to interfere with the Board’s Decision.

17.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

18.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 and did not appear.