Case Detail

HCAL 892/2021

[2021] HKCFI 2918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 892 OF 2021

_____________

RE:

DANG VAN TUAN

Applicant

_____________

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

Date of Decision: 12 October 2021

_____________

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 28 July 2021 (the “Court’s decision”), the Court refused to grant him 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 16 September 2021 for appeal against the Court’s decision out of time.

5. In his affirmation in support of his application, he said that he did not receive the Court’s decision on time. He considered that the Court’s decision was unfair because it was reached without allowing him an opportunity to clarify his case and situation in his country. He asked for a hearing for him to present more in detail. But he did not say what he wanted to present in detail to the Court.

Discussion

6. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reasons, 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. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board accepted the basic facts that he had been threatened verbally by the creditor and his people; that he had been physically assaulted on some occasions and that he subjectively feels that he would be harmed by the creditor if he is seen again by the creditor [41]. However, there was no evidence to show that the creditor or his people would harm or kill him if he returned to Vietnam [43]; that he faced risk throughout Vietnam; that he had suffered injuries to the required severity and that the state would not help him for a Convention reason. The Board also found that state protection would be available to him [69] and he could not bring himself within the definition of “refugee” within the context of the Convention [70]. The applicant was unable to prove BOR 2 risk [73]. His claim on Torture risk and BOR 3 risk also failed [78]. The Board also found that internal relocation was open to him [94]. The references are in the Board’s Decision.

10. 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.

11. 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.

12. 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 892/2021

[2021] HKCFI 2180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 892 of 2021

BETWEEN

	Dang Van Tuan	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 4 June 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). He is now being detained by the Immigration Department.

2. 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.

The applicant

4. The applicant is a citizen of Vietnam. He came to Hong Kong illegally from the mainland on 23 December 2018. He was arrested and repatriated. On 29 May 2020, he was arrested for offences of wounding, unlawful remaining in Hong Kong, possession of forged Hong Kong Identity Card and criminal intimidation. He was sentenced to 15 months’ imprisonment. He lodged non-refoulement claim by way of a written signification dated 11 October 2020.

5. He claimed that if refouled, he would be harmed or killed by his creditor from whom he had borrowed 2 billion Vietnamese currency. He had lost the money in gambling and he was unable to repay the debt. The creditor had on three occasions chased him for the money. On two occasions, he and his people had attacked him. He had to flee to Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6. 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”).

7. By Notice of Decision dated 16 February 2021 (“the Director’s Decision”), the Director refused his claim for the reasons that the level of risk of him being harmed or killed if he returned to Vietnam was assessed to be low [11]; that state protection was available to him and there was no evidence to show that the state was involved [12] and that internal relocation was an option open to him [17].

The Board’s Decision

8. The applicant appealed against the Director’s Decision. He appeared before the Board on 25 May 2021.

9. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board accepted the basic facts that he had been threatened verbally by the creditor and his people; that he had been physically assaulted on some occasions and that he subjectively feels that he would be harmed by the creditor if he is seen again by the creditor [41]. However, there was no evidence to show that the creditor or his people would harm or kill him if he returned to Vietnam [43]; that he faced risk throughout Vietnam; that he had suffered injuries to the required severity and that the state would not help him for a Convention reason. The Board also found that state protection would be available to him [69] and he could not bring himself within the definition of “refugee” within the context of the Convention [70]. The applicant was unable to prove BOR 2 risk [73]. His claim on Torture risk and BOR 3 risk also failed [78]. The Board also found that internal relocation was open to him [94].

Application for leave to apply for judicial review

10. The applicant filed Form 86 on 21 June 2021 for leave to apply for judicial review of the Board’s Decision.

11. In his affirmation in support of his application, he said that he did not agree with the Decision of the Director or the Board. He simply cannot go back to his country or he will be in danger.

DISCUSSION

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.… …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. His grounds in support of this application do not assist his application.

15. 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.

16. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 28^th day of July 2021

	(M.O. WONG)(Ms)
	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 28 July 2021 Dang Van Tuan 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 28 July 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17687/21/3/6/V2768 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 999/20 (Formerly RBCZ 10927/20)(T2126) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

DANG VAN TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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Files (2)

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