Ngo Van Thanh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1683/2018

[2019] HKCFI 3078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1683 of 2018

BETWEEN

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

Following;

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 ex parte application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to the applicant. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if the applicant has had a fair screening before the Immigration office and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicant appeared before this Court.

3.The applicant confirmed that he wished the Decision of this Court to be written in English rather than in Chinese.

The applicant

4.The applicant is national of Vietnam. He came to Hong Kong illegally on 20 April 2014 and was arrested by police on 23 April 2014. On 24 April 2014, he was referred to the Immigration Department for investigation. He lodged a non-refoulement claim on 29 April 2014.

5.He claimed that he was a fisherman in Vietnam. In 2013, he borrowed a sum of 100 million Vietnamese currency from a money-lender called Manh. He invested the money in his fishing boat. Under the agreement for the loan, he was required to pay 15 million Vietnamese currency to Manh every month for the interest. He was able to do so between September 2013 and January 2014. However, on a day in January 2014, his fishing boat was caught in a storm and capsized. He was saved by another ship. He was then unable to pay the interest. Shortly after he had returned home after being saved, Manh took 9 men to his home and demanded repayment of the loan. He was unable to pay, thereupon the people beat him up with sticks. His arm was broken. He left his home and went to another city where he stayed for about two months, leaving his family behind. He worked there as a casual worker. He missed his family and returned home on 18 April 2014. However, shortly after he had arrived at home, he saw Manh and his people were looking for him. He escaped immediately. He then met an agent, who arranged for him to come to Hong Kong.

The Director’s Decision

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

a. risk of torture under Part VIIC 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 14 October 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board

8.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 4 April 2018.

9.By Decision dated 20 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s case and seemed to accept the applicant’s fact as stated. The Board came to a conclusion that the applicant was not eligible for non‑refoulement under the statutory provisions and the Convention. What follow are the reasons.

a. The injuries suffered by the applicant did not amount to torture within the context of Part VIIC of the Ordinance or BOR 3 risk. [23-26]

b. There was no evidence the state was involved in the lending business. [33]

c. The loan was a private business between the applicant and Mahn only. [46 & 47]

d. The injuries as alleged did not amount to torture or cruelty under BOR 3 risk. [51]

e. There was no evidence that the applicant should be protected under Persecution risk. [66]

f. There was no evidence that the applicant was subjected to BOR 2 risk. [74]

11.In his Form 86 under order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant stated that if he returned to Vietnam, he would be located by the triad society. He asked the Hong Kong Government to allow him to stay in Hong Kong.

DISCUSSION

The Board’s Decision

13.The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained the Director’s Decision to him. He could understand the hearing bundle and the Board’s Decision himself.

14.I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments on them.

15.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42] unless the findings are subject to Judicial review. I find that there is no reason for the findings to be subject to judicial review.

16.Having considered the Board’s Decision, I find that the Board had carefully considered the applicant’s case and applied the appropriate law and Convention to the facts of the case. There is nothing amiss in its analysis.

17.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 20^th day of December 2019

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

Form CALL-1