Vu Duy Vinh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1275/2020

[2025] HKCFI 2270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1275 OF 2020

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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 20 March 2020 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 expires on 20 June 2020. His application was filed on 23 June 2020, which is late for 3 days only. This issue will be dealt with below.

2.The applicant did not ask for a hearing. 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, aged 40, is a national of Vietnam. He had come to Hong Kong illegally many times. His last entry was on 7 July 2014 and was arrested by police. He was referred to the Immigration Department and he lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by the triad member because he was unable to repay the loan to them Besides, he also fears that he will be arrested by police because he had escaped from the drug addiction treatment centre and the police will put him into the centre again.

5.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 October 2018 (“the Director’s Decision”).

The Director’s Decision

6.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”).

7.The Director refused the applicant’s claim for the reasons: (i) his evidence in support of his claim was not credible [15]; (ii) the low intensity and frequency of past ill-treatment from the triad members indicated that future risk of being harmed or killed upon his return is not likely to materialize [19]; (iii) state protection will be available [24]; and (iv) internal relocation is permissible under the Vietnamese law and is viable [31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 26 June 2019, the Board conducted an oral hearing.

9.Having considered the applicant’s evidence, the Board had made the finding of the facts below, dismissed his appeal and confirmed the Director’s Decision.

(1)  The applicant’s evidence in support of his claim was inconsistent and unreliable. [55]

(2)  There was no evidence to show that the Vietnamese government was unwilling or unable to provide protection for him. [30]

(3)  The Vietnamese Constitution provides freedom of movement within the country and internal relocation will be viable. [31]-[34]

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

10.The applicant has filed Form 86 dated 23 June 2020 for leave to apply for judicial review of the Board’s Decision. He has given no reason in support of his application in Form 86.

11.In his affirmation in support of his application, the applicant said he objected to the Board’s Decision and he wanted to have judicial review of the Board’s Decision.

DISCUSSION

12.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.

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

14.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.”

15.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.

16.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

17.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.