Nguyen Xuan an v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1315/2018

[2021] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1315 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 1975, is a national of Vietnam.  On 21 October 2014, he surrendered himself to the Immigration Department claiming that he sneaked into Hong Kong on 17 October 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 [12-25] 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, Thanh, who was his friend as well as a loan shark.  He claimed that he ran a shoe retail business and Thanh had been his friend for 30 years.  In 2013, Thanh invested 1 billion Vietnamese Dong in the applicant’s business.  In July 2013, Thanh said the money was given to him by way of a loan and the applicant had to pay him interest.  They had an argument as it was not their agreement.  In August 2013, Thanh came with 2 men demanding the applicant to pay back the money and threatened that he would be in trouble if he could not repay the money.  In September 2013, Thanh again with the 2 men and threatened that he would die if he could not repay.  They removed all his stock and left.  One day in October 2013[1], Thanh came with the same 2 men and beat the applicant’s back for 10 minutes.  Before leaving they threatened to kill him if he could not repay on their next visit.  In fear, the applicant fled to Quang Ninh living with a friend for a few months and with another friend for another several months until he left Vietnam.

The Director’s decision

4.By a notice of decision dated 21 December 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, 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^[2], BOR 2 risk^[3], BOR 3 risk^[4], and persecution risk^[5]. 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 27 March 2018.

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 detailed reasons for rejecting the applicant’s claim at paragraphs [26-34] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board reasoned that the applicant and Thanh had been friends for long, there was no evidence to explain the drastic change in Thanh’s attitude [26];

(2)  it also noted material inconsistencies in his claims relating to core issues [27-28];

(3)  his family members were not disturbed by Thanh [30];

(4)  the Board concluded that the applicant had not been telling the truth and rejected his allegations of the behaviour of Thanh and his men [31];

(5)  in any event, state protection is available and internal relocation is a viable option for the applicant [36].

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 9 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 claim of fear because of his inability to repay the debt and stated that he did not agree with the decision of the Board.

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 in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant based on the major inconsistencies and contradictions in his evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  Moreover, the Board found state protection and internal relocation available to the applicant.

15.As explained above, the assessments of evidence, risk of harm, state protection 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 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. 

17.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.

18.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.

19.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.

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

Disposition

21.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