Case Document

100%Judiciary

HCAL 2401/2018

[2020] HKCFI 1654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2401 of 2018

BETWEEN

	Bui Phu Le	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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 the 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.The applicant is absent for this hearing. There being no evidence to show that the Notice of Hearing was not served on him, his absence without prior notice or explanation demonstrates that he has waived his right of being heard for his application. I shall proceed to consider his application on the papers only.

The applicant

2.The applicant is a Vietnamese national. He came to Hong Kong on 11 March 2016. He was arrested on 13 March 2016 and was referred to the Immigration Department on 14 March 2016. He lodged a non-refoulement claim on 16 March 2016.

3.He claimed that if refouled, he would be killed by three loan sharks: Dong Duy Hai, Pham Van Thanh and Li Van Dung due to his loan default.

4.In 2013, the applicant ran his silk business. He borrowed substantial amounts of money from the banks and the loan sharks. In 2015, there was a fire which destroyed his goods. He was made bankrupt. He was unable to repay the loans to the loan sharks. In October 2015, loan shark Dong Duy Hai together with 10 others came to his house to demand payment. He was unable to pay. They assaulted him with a bottle on his right elbow, which bled and his left knee was also hurt. They threatened him that if he was still unable to pay the loan by December, they would kill him. He reported to police, which did not take action. Other loans sharks also came to his house to demand payment. They threatened him that if he was unable to pay, they would kill him. He was under immense pressure. He came to Hong Kong.

The Director’s Decisions

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

a.torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);

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”).

6.By Notice of Decision dated 25 August 2016 and Notice of Further Decision dated 28 July 2017, collectively called (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decisions and he attended a hearing before the Adjudicator on 9 October 2017.

8.By Decision dated 23 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decisions.

9.The Board considered the applicant’s evidence. It came to its conclusion that the applicant had not demonstrated that he was at risk of any form of prospective harm of a proscribed kind were he to return to Vietnam [86]. It came this conclusion having found the facts below.

a.He was not indebted to any moneylenders [70].

b.There were numerous inconsistencies in relation to the amount of money he borrowed [71], the amount of interest payable [74], the total amount borrowed from the creditors [76], he being assaulted in around October 2015 [77], what happened at the police station after the assault [82].

c.The Board had requested him to provide additional evidence as he said his wife had taken photograph of the moneylender Dong. But he had failed to do so. [83]

Application for leave to apply for judicial review

10.He filed Form 86 dated 30 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he relied upon the grounds below.

1.The Board selectively accepted the evidence: in relation to the loans and interests, the Board placed too much weight on the details.

2.The Board placed weight on the unimportant evidence, such as the way he reported the matter to police. This approach was unreasonable.

3.The Board discredited all the evidence because of the minor discrepancies, which was unfair to him.

4.He had a tumor in his head and he might be mentally ill. He required medical treatment.

DISCUSSION

The Director’s Decisions

12.The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decision

14.The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

15.The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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.The Board had set out the reasons in its Decision why it found his evidence not credible. It was entitled to form its own views after assessment of the evidence before it. When it said that there were numerous inconsistencies that the applicant was unable to give satisfactory explanation, it would not be unreasonable for the Board to have come to such conclusions.

17.The applicant fails to show that he has any reasonable prospect 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 27th 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 27/7/2020 Bui Phu Le 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 27/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 4695/16/9/74/V427 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 1695/16 and RBCZ 9002667/17 (formerly RBCZ 11306/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)