Nguyen Van Hong v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2847/2018

[2020] HKCFI 1862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2847 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.According to the record, the applicant is the father of a family, with his wife and two children as applicants for non-refoulement claim.  The Director of Immigration (“the Director”) rejected their applications.  They appealed to the Torture Claims Appeal Board (“the Board”) and by Decision dated 7 December 2018 (“the Board’s Decision”) the Board rejected their appeals.  The wife had withdrawn her appeal because she wanted to go back to Vietnam and their children had returned to Vietnam.  See paragraph 11 of the Board’s Decision.  Now, only the father applicant applied for judicial review of the Board’s decision.  I shall therefore deal with his application and I shall call him “the applicant”.

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by deleting the Director of Immigration (the “Director”) as proposed respondent and by deleting the Board as interested party.

The applicant

4.The applicant is a Vietnamese national.  He, his wife and two children came to Hong Kong illegally by boat on 2 January 2016.  On 4 January 2016, they surrendered to the Immigration Department and lodged their non-refoulement claim.

5.He claimed that if refouled, the family would be harmed or killed by the money-lender because he had borrowed money from the money-lender and he was unable to repay.

The Director’s Decisions

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

a.risk of torture under Part VII C 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 16 June 2016 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated.  The Director found that the level of risk of harm upon his return was assessed to be low [11]; that state protection would be available to him [14] and internal relocation was an option open to him [15].

8.By Notice of Further Decision dated 3 March 2017 (the “Director’s Further Decision”), the Director rejected his claim on BOR 2 risk because he was unable to establish it by evidence.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decisions.

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

11.The Board considered the applicant’s evidence and for the reasons set out in paragraphs 43-45, it came to the conclusion that his evidence was not credible [43]; that state protection was available to him [47] and that internal relocation was an option open to him [68]. Below is a summary of its findings.

a.His evidence in relation to the loans and business was not credible because of inconsistencies and implausibility.

b.His evidence was in contradiction with her wife’s evidence.

c.His evidence on the assault was not reliable, especially after seeing the photograph in the hearing bundle.

d.His evidence on his injuries was also inconsistent with her wife’s evidence.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 11 December 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that the Board did not rely upon medical report but simply relied upon subjective feeling to assess his injuries and that it had relied upon some irrelevant materials to discredit his evidence and disbelieved him.  He further said that the Board was prejudicial against him in its assessment of the risks.

DISCUSSION

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See paragraph 11.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“ 13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The grounds in support of the applicant’s application are his opinions without evidence or particulars to support them.

17.However, even if the applicant’s evidence were accepted by the Board, the fact remains that state protection and relocation are available to him.  These he did not dispute.  The Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration [2013] 1 HKC 526 held that he is not eligible for non-refoulement protection if he has state protection or if he can relocate himself within his own country.

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 for the applicant to apply for judicial review.   Accordingly, I dismiss his application.

Dated the 5^th day of August 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