Nguyen Manh Tai v. Torture Claims Appeal Board/ Non-refoulement Claims Etition Office

HCAL 1144/2018

[2021] HKCFI 193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1144 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:

Application for 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 1981, is a national of Vietnam.  On 29 September 2014, he was arrested by Hong Kong police.  He claimed that he sneaked into Hong Kong from Shenzhen by boat on the same day.  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 [12-20] 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 creditors.  He said that from 2010 to 2014, he borrowed various sums from different creditors in Vietnam totalling more than 2.5 billion VND.  Beginning in early 2014, he was unable to repay one of the creditors, Hoa, who had on many occasions sent people to make dunning visits at his home.  They threatened that he would be beaten if he was unable to repay.  The applicant moved to stay at the house of his paternal grandfather 15 Kilometres away.  In about May or June 2014, Hoa’s men found him and attacked him with bricks and stones.  They threatened to chop off his fingers and toes if there was no repayment forthwith.  He telephoned her sister who came later with part payment for the debt and she promised to take joint responsibility to repay the debt.  He was then released.  In fear of Hoa and that the other creditors would treat him the same way, he decided to leave Vietnam.

The Director’s decision

4.By a notice of decision dated 14 December 2016, 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 did not attend the hearing before the Board scheduled on 27 March 2019. Neither did he explain for his absence.  The Board therefore proceeded to consider his application in his absence.

6.By a decision dated 25 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 [21-24] of its decision.  In a nutshell, the Board found that as the applicant was absent from the hearing, there were aspects of the case that it would query remaining unexplained [22].  These questions went to core aspects of his case.  The Board refused to give weight to the information he provided to the Director, and it found there was nothing else to indicate there should be non-refoulement [23].  Even assuming that the factual assertions by the applicant were accepted, the Board was not satisfied there is a real risk of serious harm from Hoa; it found that it was pure speculation that the other creditors will seriously harm him.  Moreover, state protection and internal relocation are available to him [24].

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 20 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 repeated his claimed fear of his creditors.

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 decision will only focus on the Board’s decision.

14.In the present case, the applicant failed to attend the oral hearing scheduled for him and did not explain for his absence.  It would not be improper for the Board to proceed to decide on the materials available to the Board.  Neither in the Form 86 or in his affirmation that the applicant took issue with the course adopted by the Board.  As there was no evidence to explain the queries it had on core issues, the Board was entitled not to attach weight to the information he provided to the Director.  The Board rightly pointed out that there was no evidence to indicate that his sister was harmed at the hands of Hoa.  In any event, even if the claimed primary facts were accepted, it was not satisfied that there would be real risk that the applicant would be harmed.  The Board further found that internal relocation is a viable and reasonable option for him and reasonable state protection is available to him.

15.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.

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.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

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 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