VU NGOC DAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 1029/2019 [2022] HKCFI 2337 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1029 of 2019 BETWEEN Vu Ngoc Dan Applicant and Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 1st Putative Respondent Director of Immigration 2nd Putative Respondent Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following:  consideration of the documents only; or consideration of the documents and oral submissions by the Applicant in open court; Order by Deputy High Court Judge To: Extension of time to apply for leave to apply for Judicial Review be refused; and Leave to apply for Judicial Review refused. Observations for the Applicant: Introduction This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 11 January 2019 (the “Decision”) refusing his application for late filing of his Notice of Appeal (the “NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 April 2017 (the “Notice”) refusing his application for non-refoulement protection. The Applicant is a national of Vietnam, now aged 43. He entered Hong Kong on 1 November 2015 illegally. He surrendered to the authorities on the following day and raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk; BOR 3 Risk; Persecution Risk; and BOR 2 Risk. By his Notice dated 25 April 2017, the Director rejected his claims under all four applicable grounds. The Notice was sent to the Applicant by post. On 22 June 2017, the Applicant lodged his NOA with the Board to appeal the decision of the Director in the Notice. His appeal was lodged out of time. On 11 January 2019, the Board issued the Decision refusing his application for late filing of the NOA. On 16 April 2019, which was slight over three months after the date of the Board’s Decision, the Applicant applied for leave to apply for judicial review of that Decision. Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made. As the Decision sought to be reviewed was made on 11 January 2019 and the application for leave to apply for judicial review was made on 16 April 2019, it was only five days out of time. The application is deemed to include an application for extension of time to file the same. The Applicant was “double late”. He was late in his appeal against the Director’s Notice and late in his application for leave to apply for judicial review of the Board’s Decision. In AW and Director of Immigration & Anor, the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into court will take into account: (1) the length of delay; (2) explanation for the delay; (3) merits of the intended application; (4) prejudice to the applicant vis-à-vis that to respondent if an extension of time is refused or granted; and (5) whether the application raises any question of general public importance. However, as the Applicant was just five days over and above what is usually regarded as undue delay, this Court was prepared to condone his delay provided his intended application has merits The Decision sought to be reviewed revolved around a very narrow compass, ie the appropriateness of the Board’s refusal of the late filing of the NOA. The Applicant’s case for non-refoulement protection and the Director’s Notice refusing his claim for protection were not the subject matter of that Decision. They only formed part of the background leading to his appeal to the Board and the Board’s Decision. The Applicant’s case The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, the Applicant claimed that he would be harmed or killed by his creditors (Nguyen, Vuot and Hung, together the “Creditors”). The Applicant is married and has two sons. His family resides in Vietnam. He has 21 years of experience in carpentry, construction and livestock farming. He started his poultry farming business in 2005. He bought animal feed on credit from the Creditors. Under his oral agreement with his Creditors, he was required to settle his accounts within one month and to pay interest at the rate of 1% per month if he could not settle the accounts within time. The Applicant was able to make timely payments until around 2006 when he suffered loss due to the epidemic. Part of his livestock died and the remainder had to be sold at a low price. He started defaulting on payment for the animal feed. He closed his business in 2007. He owed Nguyen VND 300 million, Vuot VND 150 million and Hung VND 50 million plus interest. The Creditors asked the Applicant to take up employment and to repay them with his salary. As there were few employment opportunities in his home town, the Applicant went to different places, including Haiphong, Tỉnh Quảng Ninh and Hanoi, to work and to avoid the Creditors. He returned to his home occasionally. His wife told him that the Creditors had come to their home every month looking for him. Sometimes they brought their associates with them. The associates carried weapons and told his wife that the Applicant must repay or he would be beaten. They were triad members. The Applicant also suspected the Creditors had triad connections. One night towards the end of 2008, while the Applicant was working as a labourer in a private residence in Haiphong, four unknown men came to him and demanded that he repay his debt. They used the wooden sticks in the construction site to beat him for over half an hour. The Applicant lost consciousness. He took a month to recover. Then, he fled to Tỉnh Quảng Ninh. Another night towards the end of 2009, four men visited the Applicant while he was resting in his home. One of them was one of the assailants in the attack in Haiphong. Another one of them carried a sabre. They demanded the Applicant to pay his debt and threatened to break his arms and legs. They punched and kicked him for about half an hour. One of them slashed the back of the Applicant’s foot with the sabre. The Applicant received four stitches as a result. It took him one week to recover. The Applicant went back to his home town in Quynh Hoa where he made two complaints to the authorities, but the authorities declined to file a report for the reason that it was a private debt dispute. He heard that Nguyen had a relative in the Quynh Hoa police station and that another of Nguyen’s debtor had attempted to make a complaint but was unsuccessful. Then the Applicant moved to Hanoi where he stayed for 6 years. During those six years, he visited his family in Quynh Hoa twice each year. On each visit, his wife told him that the Creditors and their associates visited their home every two to three months and threatened to kill him. However, the Applicant never met the Creditors or their associates during his visits and was never harassed during the six years when he was in Hanoi. Then the Applicant came to Hong Kong in November 2015. The finding of the Director On the Applicant’s case, the Creditor’s associates attacked him twice. They left after the Applicant lost consciousness on the first occasion and after his foot was slashed on the second occasion, but his wife and family had never been harmed. Hence, the Director found that the Creditors’ intention was to pressurise him to pay and not to cause him serious harm. The Applicant was able to continue to work. The harm, whether physical or mental, suffered by the Applicant was not that serious as to meet the minimum threshold of severity. On the basis of credible Country of Origin Information (“COI”), the Director noted that while there were corruption problems in the Vietnamese government, the government had made significant progress in combating corruption. There was nothing to suggest that the level of corruption was so serious that the Applicant would be denied protection. As for the Applicant’s allegation that Nguyen’s relative had influence over the police, the Director noted that it was the Applicant who chose to complain to the authorities in his home town but not to the authorities in the locality where he was attacked or to other police stations. The Director dismissed his allegation that the Vietnamese police would not protect him as speculation on his part. The Director was satisfied that state protection of an adequate standard would be available to the Applicant upon his return to Vietnam. As for the viability of internal relocation, the Director noted that there was nothing to suggest that the Creditors would be able to locate the Applicant over the vast country of Vietnam. The Director further noted that being an abled-bodied adult with years of work experience, the Applicant may safely relocate to Ho Chi Minh city or Hanoi to avoid the Creditors. The Board’s Decision Under section 37ZS of the Immigration Ordinance and paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, an appeal against the decision of the Director must be made within 14 days after the Notice was served on the appellant. Under section 37ZV(3), the Notice was deemed to have been served on the Applicant on the second day after posting, ie 27 April 2017. The Board therefore held that the deadline for filing the NOA fell on 11 May 2017. The Applicant was late by 42 days when he filed his NOA on 22 June 2017. The delay was very substantial having regard to the fourteen-day period allowed for filing. In paragraph 50 of the Notice, the Applicant was advised of his right to appeal to the Board and of the fourteen-day time limit for filing the NOA. There was no complaint that the Notice had been delivered to the Applicant late. Thus, the Applicant had the benefit of the fourteen-day period to consider and file the NOA. Section 37ZT(2)(a) mandates a late appellant to state the reasons for the late filing in Section 5 of the NOA. Section 37ZT(3) requires the Board to consider whether by reason of special circumstances it would be unjust not to allow the late filing. As the Applicant did not give any reason for the late filing by completing Section 5 of the NOA, the Board found the Applicant had failed to provide sufficient information and documentary evidence to enable it to determine the strength of his grounds of appeal and whether by reason of special circumstances it would be unjust not to allow the late filing. It therefore dismissed the application for late filing. The legal principles applicable to judicial review The role of the court in judicial review is not to re-assess the decision afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection, viability of internal relocation and whether there were special circumstances which would make it unjust not to allow the late filing of the NOA. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration Grounds of application The Applicant did not state his grounds of application in the Form 86. In his supporting affirmation filed on the same day, he said that he believed, if refouled to Vietnam, his life will be in danger because his Creditors and their associates would harm or even kill him as he could not repay the loans. This is an attack on the Director’s finding of fact that it was safe for him to return to Vietnam. That is not the Decision sought to be reviewed. The Decision sought to be reviewed is Board’s refusal of his late filing of the NOA. This ground is irrelevant. The Applicant’s explanation for the late filing is that he did not know what he had to do to process his appeal after receiving the Notice around the end of October 2018. He had the date wrong. He filed his NOA on 22 June 2017, sixteen months prior. He must have received the Notice long before October 2018. Assuming the date is a typographical error, his explanation is incredible because he had been fully advised in the Notice of his right to appeal, where to appeal and was even given a copy of the NOA. All that he had to do was to complete the NOA and lodge it within 14 days, or failing that to complete Section 5 in addition and lodge the NOA. But he chose not to complete Section 5 and left it blank. His explanation, which was rejected by the Court, could not constitute a valid ground of application for judicial review. In the absence of any specific ground of application, the Court in an application for judicial review could only focus on the usual challenges of error of law, procedural unfairness or irrationality in the decision sought to be challenged. Having rigorously examined the Decision, the Notice, the NOA, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The immigration officer assessed the Applicant’s harm and risk on the basis of the case as asserted by him and the objective COI. He found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. These are finding of facts the immigration officer. Likewise, the Court was satisfied that the Board had correctly directed itself on the law and key legal principles relating to the late filing of NOA. The Board observed a very high standard of fairness. It found that the Applicant had failed to provide sufficient information and documentary evidence to enable it to assess the strength of his grounds of appeal against the decision of the immigration officer and to find whether there were any special circumstances which would make it unjust to refuse the late filing. Hence, it refused the late filing. The Decision is a finding of fact which is exclusively within the province of the Board as the decision maker, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court was satisfied that the Board made no error of law and committed no procedural unfairness in reaching the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant has no arguable grounds for judicial review. There is no realistic prospect of success in the proposed judicial review. Conclusion The Applicant’s intended judicial review has no prospect of success. As such, he would suffer no prejudice if extension of time is not allowed. But, to allow him to proceed to challenge the Decision when there is no prospect of success is by itself an abuse of legal process and will occasion prejudice to the intended respondent. The proposed judicial review does not raise any question of general public importance. Accordingly, leave to apply out of time will not be given and his application for leave to apply for judicial review is refused. Dated 3rd day of August 2022. ( Allen LEE ) 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 Notes for the Applicant: If leave has been granted, the Applicant or his 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 3/8/2022 Vu Ngoc Dan 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 3/8/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 1st Putative Respondent’s ref. no.: USM 7603/17/6/299/V1492 Director of Immigration 2nd Putative Respondent’s ref. no.: QA T/C 243/17 (formerly RBCZ 13999/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1