Case Detail

HCAL 1095/2021

[2021] HKCFI 3185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1095 OF 2021

_____________

RE:

DOAN DUY BA

Applicant

_____________

Before: Deputy High Court Judge K.W. Lung in Chambers

Date of Decision: 9 November 2021

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D E C I S I O N

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The application

1. The applicant is an illegal immigrant and he lodged a non-refoulement claim with the Director of Immigration (the “Director”). The Director, by his Decision, 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 20 September 2021 (the “Court’s decision”), the Court refused to grant him leave to apply for leave to apply for judicial review of the Board’s Decision and dismissed his application for the reason that there was no realistic prospect of success in his intended application.

4. The applicant filed a summons on 18 October 2021 for appeal against the Court’s decision out of time.

5. In his affirmation in support of his application, he submitted that he does not read English. It was not until the immigration officer told him that his application had been rejected by the Court did he know the situation. He considers that the Court’s decision was unfair because he was not given a chance to clarify his case and his situation in his country. Therefore, he asks the case to be fixed for an oral hearing for him to present more detail.

Discussion

6. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons and there being no particular as to what the applicant intends to produce in the hearing, I decide to determine this application without an oral hearing.

7. 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.

8. 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].”

9. I shall therefore first consider the merit of his intended appeal.

10. The Board considered the applicant’s evidence the Board rejected his appeal and affirmed the Director’s Decision for the reasons that the incidents are personal matters, which are not within the context of the persecution risk [67]; that there was no evidence to establish violation of the applicant’s right to life [73] and that internal relocation was an option open to him [80].

11. His grounds for this application are not valid as his intended appeal has no merit.

12. The applicant has not raised any valid ground to say either that the Board was in error or that the Court was in error. There is no realistic prospect of success in his intended appeal against the Court’s decision.

13. In the circumstances, I refuse to extend time for his appeal against the Court’s decision. Accordingly, I dismiss his application.

	(K. W. Lung)
	Deputy High Court Judge

The applicant was unrepresented.

HCAL 1095/2021

[2021] HKCFI 2784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1095 of 2021

BETWEEN

	Doan Duy Ba	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of documents only; or
consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 9 April 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). The applicant’s application is late. I shall deal with this issue below.

2. He is now being detained by the Immigration Department. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

4. The Board’s Decision was written in Chinese. As the applicant wrote his affirmation in English, I shall write my decisions here in English.

The applicant

5. The applicant is a citizen of Vietnam. He came to Hong Kong on 14 February 2020 illegally and was arrested by police. He lodged non-refoulement claim with the Immigration Department by written representation on 10 March 2020. Whilst on bail, he committed the offence of theft and was convicted and sentenced to imprisonment for 8 months.

6. He claimed that if refouled, he would be harmed or killed by his creditor from whom he had borrowed 650 million Vietnamese currency for his business. He sustained loss because of a fire at his shop. He was unable to repay his debt. The creditor threatened to kill his family. His subordinates assaulted him on the street with water pipes. The second time they attacked him was outside the school where his son attended. They threatened to kill him and his family. They also hit him with water glass on his head and face. They took away his motorbike. He fled Vietnam for China and then sneaked into Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

7. The Director considered his application in relation to the following risks:

a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 14 October 2020 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed by his creditor if he returned to Vietnam was assessed to be low [10]; that state protection was available to him [14]; that there was no evidence that the state was involved [15]; and that internal relocation was an option open to him [17].

The Board’s Decision

9. The applicant appealed against the Director’s Decision. He appeared before the Board on 14 January 2021.

10. By the Board’s Decision, the Board agreed with the Director’s Decision and rejected his appeal. The Board found that the incidents are personal matters, which are not within the context of the persecution risk [67]; that there was no evidence to establish violation of the applicant’s right to life [73] and that internal relocation was an option open to him [80].

Application for leave to apply for judicial review

11. The applicant filed Form 86 on 4 August 2021 to apply for leave to apply for judicial review of the Board’s Decision.

12. In his affirmation in support of his application, he said that he disagreed with the decisions of the Director and the Board, rejecting his claim. He cannot go back to his country because it is dangerous to his life.

DISCUSSION

13. As mentioned in paragraph 1, the applicant’s application is late for less than one month (between 23 July 2021 and 4 August 2021). The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike[2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicant’s case.

14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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, CA. §40 and Nupur Mst v Director of Immigration[2018] HKCA 524 §14 (1).

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.… …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 applicant is unable to raise any valid ground to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20. I therefore refuse to extend time for the applicant to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

Dated the 20^th day of September 2021

	(K.H. LI)
	for Registrar, High Court

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

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20/09/2021 Doan Duy Ba Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20/09/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17336/20/11/4/V2612 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 435/20 (Formerly RBCZ 10368/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

RE DOAN DUY BA

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Files (2)

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;