Hoang Vinh Hoa v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2857/2018

[2020] HKCFI 1859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2857 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 application for leave to apply for judicial review of the Decision dated 6 December 2018 of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (“the Board’s Decision”).

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 adding the Director as interested party.

The applicant

4.The applicant is a Vietnamese national.  He came to Hong Kong illegally on 8 September 2016.  He surrendered and applied for non‑refoulement protection on 12 September 2016.

5.He claimed that if refouled, he would be harmed or killed by his creditor.  The police in Vietnam would also cause trouble to him because he left Vietnam to seek assistance from Hong Kong. The facts of the case can be found in paragraphs 2 & 3 of the Board’s Decision.  He was tortured by his creditor and his people.  They beat him up for hours and had severed one of his toes because he was unable to pay his debt. The detailed facts are set out in paragraphs 5-14 of the Board’s Decision.

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 9 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the risks he alleged if he returned to Vietnam was low [13]; that state protection would be available to him [22] and internal relocation was an option open to him [28].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  Having considered the case ST v Betty Kwan CACV 115/2013, the Board decided that a hearing is not necessary.  It proceeded to assess his appeal on the papers.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons below.

a.The treatments he had been subjected to did not amount to the minimum level of severity [23].

b.The matter concerned a private money lending between the creditor and himself and there was no state involvement, directly or indirectly [24].

c.There was no evidence that state protection was not available to him [36].

d.Internal relocation was an option open to him [58].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he stated that if he returned to Vietnam, his creditor would not spare him because he was unable to pay the debts.

DISCUSSION

12.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 9 above.

13.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.”

14.The Court finds that the Board’s opinion that the creditor’s people had beaten the applicant for hours and had amputated his second toe did not reach the minimum level of severity is too harsh for the applicant.  In the case of Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, the Court of Final Appeal said:

“173. In R (Limbuela) v Secretary of State for the Home Department, Lord Hope of Craighead, citing decisions of the Strasbourg Court, described what was required to meet the ‘minimum level of severity’, pointing out that it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment….”

15.However, this is a matter of opinion and judgment.  Other than this difference in opinions, I do not find any error of law or procedural unfairness in the Board’s Decision.  In any event, the applicant has state protection and the option of internal relocation if he returns to Vietnam. 

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.I refuse to grant leave for the applicant to apply for his intended 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