Hoang Van Sinh v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1659/2018

[2020] HKCFI 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1659 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 me 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 officer and the Board and if there are any further grounds in support of the application. In response to the Court’s letter, the applicant appears before this Court.

3.The applicant appeared in court and confirmed that he wished the Decision of this Court to be written in English rather than in Chinese. Therefore, despite he spoke in Chinese in court, this Court accedes to his request.

The applicant

4.The applicant is a national of Vietnam. He came to Hong Kong illegally through China on 30 November 2013. He was arrested by police on 20 February 2014. He lodged a non-refoulement claim on 27 February 2014.

5.He claimed that if refouled, he would be harmed or even killed by the Vietnamese authorities due to his belonging to the ethnic group of H’mong people and his religious belief as a Protestant/Christian.

6.He claimed that the Vietnam government persistently persuaded the people to abandon religious belief. He was a Catholic at his locality, Cao Bang City, Cao Bang Province of the H’mong ethnic group. The Vietnam People’s Public Security sent police officers to his locality to tell the people to abandon their religion. When the people refused, the police officers would beat them up or locked them up.

7.Between May to October 2013, there were incidents where he was oppressed by the Vietnam People’s Public Security. The first incident took place when he was in Hanoi. He was beaten by public security officers with batons on his face, head, back of his neck, hands and body for hours. His fingers were crushed by hard objects. The second incident took place at the end of October. He was walking with some other fellow Catholics on the street. They were arrested by the public security officers and taken back to their office where they were beaten up with electric stun guns. He was also tortured to death and was then released. The third incident took place in October too. There were hundreds of public security officers who came at night time and arrested many H’mong Catholic. He barely escaped. In November 2013, he left Vietnam for China and then to Hong Kong.

The Director’s Decision

8.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”).

9.By Notice of Decision dated 17 February 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

10.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 9 May 2018.

11.By Decision dated 3 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

12.The Board considered the applicant’s case and, having considered the inconsistencies between his evidence given to the Director and to the Board and the inherent implausibility of his evidence [80-86], it concluded:

“79. … I am not satisfied that the Appellant is a truthful witness and I consider that he has manufactured his claims for non-refoulement protection in Hong Kong…

87. … the Appellant is not of the Hmong ethnicity or Protestant religion…he was fabricating his claims … I do not accept, therefore, that the Appellant was involved in Hmong political protests … Nor do I accept that he was arrested, tortured, assaulted with electric batons or his fingers crushed or that he suffered psychological pain or torment in Vietnam.

88. … I am not satisfied that the Appellant will be involved in political protests supporting the Hmong upon his return to Vietnam or that he has any adverse political profile with the Vietnamese authorities…”

Application for leave to apply for Judicial Review

13.In his Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant simply said that it would be unfair to return him to Vietnam in the circumstances that he submitted.

DISCUSSION

The Board’s Decision

15.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 to him. He could understand himself.

16.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.

17.It is quite obvious that, apart from some fundamental facts such as his nationality, the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant.

18.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was, subject to judicial review, final [42]. There is no ground to challenge the Board’s finding.

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

CONCLUSION

20.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 9^th day of January 2020

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