Pham Van Tuyen v. Torture Claims Appeal Board/ Non-refoulement Claims Etition Office

HCAL 1176/2018

[2021] HKCFI 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1176 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 1993, is a national of Vietnam.  On 18 May 2015, he referred to the Immigration Department and lodged a non-refoulement claim.  He claimed that he entered Hong Kong illegally by hiding beneath a truck.  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 [8-16] 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 gangsters who demanded protection money from him, and tortured or even sentenced to death penalty for damaging national flag in a police station.  He claimed that he opened a food store business on 1 May 2015.  A week later, six unknown men entered his shop with weapons demanding for protection money of 15 million VND per month.  He refused and was assaulted all over his body.  He sustained small lacerations and bruises but he did not go to the hospital.  When he and his wife went to the local police station, the police officers refused to offer assistance.  When he and his wife returned to their store, the gangsters ran towards them with knives and swords.  They rushed back to the police station, but the officers again refused to help.  He was angry and torn the national flag on the desk of the police officer into pieces.  He then immediately ran away with his wife.  On the same night, he fled to Mong Cai and stayed at a park for 5 nights.  He had his passport with him at that time.  On 14 May 2015, he left for China and sneaked into Hong Kong the following day.

The Director’s decision

4.By a notice of decision dated 25 November 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances including the low intensity and frequency of the alleged past ill-treatment, the Director assessed the level of future risk of harm as low.  He considered that the inaction of local police officers was only misconduct of individual officers and isolated incident which was not justified to represent a general practice tolerated or adopted by the Vietnamese government as a whole.  He found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm.  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 24 January 2018.

6.By a decision dated 25 April 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [22-48] of its decision.

8.In a nutshell, the Board’s reasons can be summarized as follows:

(1)  the Board found the applicant’s evidence as to the harm he feared from the triads was vague and unpersuasive, indicative of his claims to have been sought by triad having ben fabricated [25];

(2)  his evidence as to the incident with the police was inconsistent and not credible, the confused and inconsistent nature of his evidence was indicative of the fact that his claims had been fabricated [26];

(3)  it did not accept as credible that he coincidentally had enough money and his passport with him to flee his country [27];

(4)  the Board did not accept that the applicant and his wife were sought by triads in relation to protection money or that the applicant genuinely fears harm in relation to this issue [28];

(5)  Nor did it accept that he desecrated the Vietnamese flag at a police station or he was chased or managed to escape from the police officers [29].

9.Having considered all the evidence, the Board found that the applicant would not be at real risk of any types of the proscribed harm, if refouled.  

10.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

11.The applicant filed a Form 86 on 22 June 2018 for leave to apply for judicial review of the decision of the Board.

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

13.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.

14.In the affirmation in support, he said the triad members and the local police will not spare him and his family members.  He fears that the gangsters would inflict more serious harm to his wife and child.

Discussion

15.The relevant principles regarding non-refoulement claims 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, country of origin information, 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.

16.When the applicant pursued the 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 will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

17.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected his account of primary facts based on the major inconsistencies and implausibility in his evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

18.As explained above, the assessments of evidence, and risk of harm are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

19.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

20.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

21.Indeed, I agree with the Board that the claims of the applicant are implausible and incredible.  Even if the claimed events were true, the evidence can hardly establish that there are substantial grounds for believing that the applicant would face a real risk of being subjected to any type of serious or proscribed harm, if refouled.

22.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

23.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 in their decisions.

24.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

25.Accordingly, leave to apply for judicial review is refused.

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