Tran Cong Dang v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 961/2018

[2020] HKCFI 2391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 961 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 1970, is a national of Vietnam.  On 22 September 2014, he surrendered to the Immigration Department for illegal remaining in Hong Kong claiming that he sneaked into Hong Kong from the Mainland on 20 September 2014.  He then lodged a non-refoulement claim.  He 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 [3-14] 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 2.2 billion Vietnamese Dong he borrowed from a loan shark in 2010 in order to settle a loan previously borrowed from a bank for his fish farm business.  The business closed down in early 2014 and he was unable to repay the debt.  On an evening in May 2014, the creditor’s followers came to his home to ask for repayment.  They were not armed with weapons and did not harm or assault the applicant.  They only threatened that he would be killed if the debt was not repaid.  In fear, he and his wife left Vietnam for Mainland China on 25 July 2014 by their passports.  He stayed in Shenzhen for two months until he sneaked into Hong Kong by boat on 22 September 2014.  His wife returned to Vietnam by herself.  When he is in Hong Kong, he keeps contacts with his son in Vietnam by phone.  However, his son does not know about his debt owed to his creditor.

The Director’s decision

4.By notices of decision dated 11 July 2016 and 29 June 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 14 July 2017. Having been explained his rights, he elected not to give evidence at the hearing but simply adopted the statements and documents he had previously provided.

6.By a decision dated 13 March 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claimat para [34-77] of its decision.  In a nutshell, the Board found that the case arose from a private money dispute [41].  The creditor merely wanted the applicant to repay and did not assault or cause harm to him [39-40].  The applicant’s experience in the alleged incidents did not attain a minimum level of severity [42].  Furthermore, state protection is available to him [54] and local relocation is a viable option [60].

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 29 May 2018 for leave to apply for judicial review of the decision of the Board “dated 29 June 2017” (sic).  It is apparent that he made a mistake about the date of the Board’s decision which should be 13 March 2018.  The date he gave is the date of the Director’s second decision.

9.In the Form 86, the applicant did not set out any grounds of review.  In his affirmation in support, he said the adjudicator of the Board was prejudiced against him and neglected the persecution he faced in Vietnam.  He repeated his claim that the creditor threatened to kill him if he could not repay the debt.  And the creditor is a member of triad society.

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

Discussion

11.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.

12.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.

13.In the present case, the Board took a view on facts most favourable to the applicant.  The Board did not take issue with the applicant’s asserted primary facts.  It however disagreed with the applicant on the assessment of risk flowing from such events.  It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled.  Further and in any event, the Board found that state protection would be available to him and internal relocation is a viable and reasonable option for him.

14.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.

15.The application form and affirmation of the applicant only contained a vague allegation against the Board without any particulars or evidence in support.  He said the adjudicator was biased on the assessment of the applicant’s integrity.  In fact, the Board took a view on primary facts most favourable to him.  It only disagreed on the assessment of risk flowing from the events.  The complaint is wholly without merit.  It has no reasonably arguable basis to challenge the findings of the Board.

16.I agree that even on the applicant’s own account, the past ill treatment by threats of the creditor (without using actual violence) was of low intensity and frequency.  It did not reach the level of severity required to constitute torture or CIDTP.  He did not report the incidents to the local police or authorities.  He did not even alert his son, who is still residing in Vietnam, about the debt problem he had.  After he had left Vietnam, his family members remained safe.  There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled.  The determination of the Board is eminently reasonable.

17.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

18.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 28 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