Nguyen Thanh Quang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1304/2018

[2021] HKCFI 281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1304 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 submission 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 1989, is a national of Vietnam.  In July 2015, he surrendered himself to the Immigration Department claiming that he sneaked into Hong Kong a few days ago.  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 [16-28] 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 (i) his creditor, (ii) the victim of a robbery case committed by the applicant.  The applicant claimed that in mid-2014, he borrowed a loan of 500 million Vietnamese Dong to set up a boutique business.  He was unable to repay when it was due for repayment at the end of 2014.  His creditor came with his men and attacked the applicant with wooden poles and sword.  They allowed him half a month to repay the loan.  He did not go to see a doctor as the injuries were not serious.  Nor did he report the matter to the police.  Between end of 2014 and beginning of 2015, he together with his friend Vu attempted to commit a robbery in order to get money to repay his loan.  They failed and in the course of committing the crime, he wounded the victim.  Vu was arrested by police on the same night while the applicant was able to flee and hide himself.  Vu was sentenced to 6 ½ years’ imprisonment.  While the applicant was hiding, his mother told him that his creditor had looked for him and threatened to kill him if they see him again.  He was also put on the wanted list by the police.  As a result, he hid himself in his aunt’s place in Hanoi for three months and then moved to stay in his uncle’s place in Hai Phong in mid-2015 until he decided to leave Vietnam for China.  He later sneaked into Hong Kong via Shenzhen.

The Director’s decision

4.By a notice of decision dated 30 January 2018, 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, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation is a viable option for him.  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 June 2018.

6.By a decision dated 26 June 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave its reasons for rejecting the applicant’s claim at paragraphs [31-48] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board found that the fear of harm from his creditor arose out of a money dispute and there was no evidence that his creditor had any intention to kill the applicant at all [32];

(2)  the attack by his creditor was only a gesture to pressurize the applicant to repay the loan [33];

(3)  the injuries he sustained were minor and did not attain a minimum degree of severity [34, 41];

(4)  he was only told by his parents after he had fled to Hong Kong that the victim in the robbery case would retaliate.  This is clearly not the reason why he came to Hong Kong [36];

(5)  internal relocation is available to the applicant [48].

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

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 6 July 2018 for leave to apply for judicial review of the decision of the Board.

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

11.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.  He only repeated his claimed fear because of his inability to repay the debt.

Discussion

12.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.

13.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.

14.In the present case, the Board did not take issue with the applicant’s asserted primary facts and events.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.

15.As explained above, the assessments of evidence, risk of harm and viability of internal relocation 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.

16.The Board noted that the applicant was only told by his parents after he had fled to Hong Kong that the victim in the robbery case would retaliate.  This is, the Board commented, not the reason why he came to Hong Kong [36].  While the applicant could rely on subsequent reason (not being the original reasons for fleeing his country), there was no reasonable evidence in support of the claim that the victim would harm or kill him.  The claimed fear was entirely his speculation.

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

18.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.

19.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

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

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

Disposition

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

Dated 9 February 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