Tran Quang Hanh v. Torture Claims Appeal Board/ Non-refoulement Claims Etition Office

HCAL 1109/2018

[2021] HKCFI 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1109 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court.

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 1956, is a national of Vietnam.  On 18 December 2015, he surrendered to the Immigration Department and 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 [16-27] 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 said that he failed to repay the debt of 1200 million Vietnamese Dong he borrowed from a money lender in 2009.  He borrowed the money to set up his fish farm business.  He failed to repay the interest and loan since August 2012.  He had been on 2 occasions threatened by his creditor that he would be killed if he could not repay the debt.  In early 2013, he moved to live in other districts until he heard from his friend that his creditor was on his way to locate him.  On 8 December 2015, he left Vietnam for Mainland China and sneaked into Hong Kong unlawfully later.  He claimed that his creditor had also threatened to kill his whole family, and had assaulted his wife with bare hands and kicks on occasions.

The Director’s decision

4.By a notice of decision dated 20 December 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 30 April 2018.

6.By a decision dated 28 May 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 [30-46] of its decision.  In a nutshell, the Board found the applicant’s creditor had only threatened to kill him but had not done anything to harm him.  There was no evidence that the creditor would carry out his threat.  His wife and children are still living in the applicant’s home in Vietnam.  The treatment he received did not fall within the meaning of torture under s 37U (1) of the Immigration Ordinance.  The Board did not find that he would be subjected to the kind of ill-treatment contemplated in BOR 3 or the risk under BOR 2.  It was also purely a private loan dispute and not on account of Convention reasons.  Further, it found that he should have no difficulty to live a normal life in a place other than his own town in order to avoid his creditor.

8.Having considered the totality of the evidence before it, the Board concluded that the applicant’s claim failed on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 15 June 2018 for leave to apply for judicial review of the decision of the Board.

10.In the Form 86, the applicant did not set out his grounds for relief sought.  In his affirmation in support, he only stated that he cannot return to Vietnam as he is afraid that his creditor would not spare him because he is unable to repay his debt.

11.No request for oral hearing has been made.  The application is therefore considered on the papers.

Discussion

12.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.

13.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.

14.In the present case, the Board did not take issue with the applicant’s claimed primary 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 internal relocation is a viable and reasonable option for him.

15.As mentioned above assessment of evidence, risk of harm, availability of 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.

16.The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a repetition of his claimed fear.  There is no reasonably arguable basis to challenge the findings of the Board.

17.Indeed, the applicant’s claim is a weak one.  Even on the applicant’s own account, the past ill treatment was of low intensity and frequency, it did not reach the level of severity required for the claimed protection.  There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled.  The decision of the Board is eminently reasonable.

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 their decisions.  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 the 28^th day of January 2021

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