Case Document

100%Judiciary

HCAL 1878/2018

[2020] HKCFI 1550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1878 of 2018

BETWEEN

	Ta Duy Hung	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 oral submission by the Applicant 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 5 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

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 them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 31 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a Vietnamese national. He came to Hong Kong on 24 May 2015 and was arrested by police on 27 May 2015. He lodged his non-refoulement claim on 25 June 2015 by way of written representation.

5.He claimed that if refouled, he would be harmed or even killed by his creditor as he was unable to repay the loan. He borrowed 900 million Vietnam currency from a loan-shark with triad background for his sea-food agricultural business in 2013. His business ran down in 2014 because of pestilence and he was unable to repay his debts. In January 2014, the loan-shark brought five or six triad people to his home where they threatened to kill him if he did not pay the interest within three months. In April, they came again and demand payment of the interest. He was unable to pay. They hit him with bare hands and kicks. He was injured with bruises all over his body. They vandalized his home.

6.He then moved to live in his mother-in-law’s home and his friends’ home. Upon advice of his friend, he came to Hong Kong illegally in September 2014 and was arrested and repatriated. He went back to his home to meet his wife in 2015. His wife was running a gambling establishment. The loan-shark heard that he was at home and he brought 6 or 7 people to his home where they assaulted him with fists and kicks. He and his wife decided to leave Vietnam together and so they did in May 2015, leaving their two daughters with his mother-in-law.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 2 December 2016, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks he alleged if he returned to Vietnam was low [12]; that state protection was available to him [17] and internal relocation was an option open to him [20]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 30 July 2018.

10.By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and did not challenge his evidence on the facts of the case. However, it found that it was only a remote or speculative risk and therefore not a real risk of him losing his life at the hands of the creditor and that it was a private dispute between the applicant and the creditor, not for Convention reason and that there was not any active or passive acquiescence on the part of the state [55]. The applicant had failed to establish any of the risks claimed. See §§35-61 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he simply said that he was still afraid that his creditor might do harm to him and he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.The applicant appeared before me and confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board.

15.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.He confirmed that he understood the Board’s findings and he had no comment on them,

17.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

18.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

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

Dated the 15^th day of July 2020

	(Mike Mak)
	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 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 15/7/2020 Ta Duy Hung 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 15/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5581/16/12/228/V758 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2394/16 (formerly RBCZ 12223/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)