Nguyen Hai Au v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 541/2018

[2020] HKCFI 2296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 541 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 C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1968, is a national of Vietnam.  On 7 August 2016, he was arrested by the police of Hong Kong and referred to the Immigration Department for investigation.  He lodged a non-refoulement claim on 5 September 2016 and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [15-35] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his creditor.  He claimed that he failed to repay the debt of 10 billion Vietnamese Dong he borrowed from a loan shark in June 2014.  He borrowed the money to set up his pawn shop business with a friend named Le.  The applicant pledged his house valued at 3 billion VND as a security.  At the end of 2015 Le stole the working capital of the pawn shop and disappeared.  The applicant therefore had to cease the business and was unable to repay the loan.  The creditor’s followers threatened to harm him if the debt was not repaid.  He fled to Mong Cai city to avoid the creditor.  As he missed his family, he went back to his elder brother’s place on 1 May 2016.  The creditor’s followers found him and detained him in a house where he was assaulted and a finger of him was cut.  They also threatened to kill him if he failed to pay up the loan.  He was in fear and fled to Hong Kong via Mainland China.

The Director’s decision

4.By a notice of decision dated 31 May 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 8 February 2018.

6.By a decision dated 29 March 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claimat para [86-115] of its decision.  The reasons can be summarized as follows:

(1)  The core of the applicant’s evidence, in particular the loan arrangement, Le’s theft of money and his fears of creditor, lacked credibility [88];

(2)  His allegation that higher level of police would not take up his complaint went against the COI and was rejected [93];

(3)  He kept embellishing his evidence in the hearing [98];

(4)  It rejected the evidence that a loan was incurred by him and thus he was subjected to violence [98];

(5)  It accepted that he suffered injuries to his finger but there was no evidence to suggest that the injury was inflicted by his creditor [99];

(6)  In anyevent, internal relocation was a reasonable option for him [115].

8.Having considered the totality of the evidence before it, the Board concluded that he did not face genuine and substantial risk of being subjected to the proscribed types of harm, if refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 3 April 2018 for leave to apply for judicial review of the decision of the Board.

10.By a letter dated 18 June 2020 posted to his address last updated with the Immigration Department, the court invited the applicant to submit information including any submissions that he would like to make and whether he would like to have an oral hearing. Since then, the applicant has not made any response or submission to the court.

11.In the Form 86, the applicant did not set out any grounds of review.  In his affirmation in support, he repeated what he told the Director and the Board about his inability to repay the loan and that he would be killed by his creditor.  

12.He did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

13.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

14.When the applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on the latter’s decision.

15.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the inconsistencies and illogicality in the applicant’s evidence.  It found him embellishing his claim during the hearing and concluded that he was not a credible witness.  It alluded to the sufficiency of state protection.  On the factual findings, there would be no basis for the applicant’s claimed fear.  Further and in any event, the Board found that internal relocation would be a reasonable option to him.

16.As mentioned above assessment of evidence, risk of harm, availability of state protection and internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

17.The complaint raised by the applicant in his affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a regurgitation of what he told the Director and the Board.  There is no reasonably arguable basis to challenge the Board’s findings.

18.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

19.For the reasons given, there is no prospect of success in the applicant’s intended application.  I refuse to grant leave to apply for judicial review.

Dated 14 September 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