Case Detail

PHAM MANH CUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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[2024] HKCFI 2998-EN-2024-11-21

PHAM MANH CUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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HCAL 1910/2019

[2024] HKCFI 2998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1910 OF 2019

_____________

BETWEEN
	Pham Manh Cuong	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

21 November 2024

_______________

D E C I S I O N

_______________

The application

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Order dated 26 September 2024 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application.

4. The Court’s decision was sent to the applicant on 26 September 2024. He is deemed to receive the Court’s decision.

5. The time for filing the notice of appeal expired on 10 October 2024.

6. By summons filed on 21 October 2024, the applicant applied for appeal against the Court’s decision out of time. He is late for 11 days.

7. In support of his application, the applicant said he did not receive the Court’s decision and he did not know that he has to file his notice of appeal within 14 days.

Discussion

8. Pursuant to Order 32, rule 11 and 11A and Order 53, rule 3(3) of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing [1].

9. The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (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 his case.

10. In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif[2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard[2019] HKCA 168; and Re Irshad Muhammad[2018] HKCA 864 at [16].”

11. The applicant claimed that if refouled, , he would be harmed or even killed by someone called Golam Mustafa (“Golam”) and his fellow Awami League (“AL”) supporters because he had fought against them for extorting money from Bangladesh Nationalist Party (“BNP”) supporters.

12. The Director rejected his claim because it was not substantiated. He appealed to the Board.

13. Having considered the evidence, the Board agreed with the Director that the risk of harm if he returned to his country was low; state protection was available and internal relocation was viable. It therefore dismissed his appeal.

14. There is no valid reason from the applicant to challenge the Board’s Decision. It is trite law that the Court should not interfere with the finding of the facts by the Board without good reason.

15. There is no valid reason from the applicant to challenge the Court’s decision.

16. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

(K.W. Lung)
Deputy High Court Judge

The applicant was unrepresented.

[1] Ogbozor Tochukwu Eugene v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration[2022] HKCA 607, Hon Kwan VP and G Lam JA, 6 May 2022:

“16. … … In respect of his complaint of no oral hearing, the judge is entitled to decide the matter on paper pursuant to the Order 32, rules 11 and 11A and Order 53 rule 3(3) of the Rules of the High Court.”

HCAL 1910/2019

[2024] HKCFI 2284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1910 OF 2019

_____________

BETWEEN
	Pham Manh Cuong	Applicant

	and
	Torture Claims Appeal Board /	Putative Respondent
	Non-refoulement Claims Petition Office

	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Judgment:

26 September 2024

_____________

JUDGMENT

_____________

THE APPLICATION

1. The applicant applies for leave to apply for judicial review of the Decision dated 24 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant

3. The applicant is a national of Vietnam, aged 59. He sneaked into Hong Kong illegally from Shenzhen on 13 March 2018 and was arrested. He lodged his non-refoulement claim by 2 written submissions respectively dated 2 May 2018 and 24 May 2018 on the basis that, if refouled, he would be harmed or killed by a loan shark as he was unable to repay the loan.

4. According to the applicant, he had borrowed a loan of VND700 million from a loan shark for his medical and living expense because he had had an accident in the course of his delivery work. He also had to compensate for the loss caused to his employer because of damage to the rice in the accident. He was unable to repay his debt and the creditor had gone to his house to assault him with wooden and iron poles and vandalize his premises. His mother reported the matter to police, which declined to take any action. The creditor’s followers threw dirty bombs to his house. He had left his house and lived with his siblings. He also stayed 2 years with his aunt. Ultimately, he entered into China and from there he entered into Hong Kong. Details of his story can be found in the Board’s Decision paragraphs 19-35.

The Director’s Decision

5. 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”).

6. By way of the Director’s Notice of Decision dated 9 January 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim for the reasons: (i) the low intensity of past ill-treatment is indicative of a low future risk of harm upon his return to Vietnam [10]-[14]; (ii) state protection will be available to him [15]-[20]; and (iii) internal relocation is a viable option [21]-[22].

The Board’s Decision

7. The applicant appealed the Director’s Decision to the Board. The Board conducted a hearing on 9 November 2019. The applicant was represented by a lawyer.

8. The Board agreed with the Director that low intensity of past ill-treatment by the creditor is indicative of a low future risk [13]. The Board further found that state protection would be available to the applicant [16]-[17]; and internal relocation was a viable option[18]-[23].

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

9. The applicant has filed Form 86 dated 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

10. In his affidavit in support of his affirmation, the applicant only attached a copy of the Board’s Decision without specifying any reason to challenge it.

DISCUSSION

11. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration[2018] HKCA 524, §14 (1).

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

13. 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.”

14. The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

15. There is no reason that the Court should interfere with the Board’s finding of the facts.

16. 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 grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

	(K.W. Lung)
	Deputy High Court Judge

The applicant was not represented.