Pham Van Khanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1340/2018

[2021] HKCFI 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1340 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 1979, is a national of Vietnam.  On 9 November 2014, he was arrested by the police and referred to the Immigration Department for investigation.  He claimed that he sneaked into Hong Kong via Shenzhen on 3 November 2014.  He lodged a non-refoulement claim on 8 December 2014.  He was subsequently released on recognizance.  On 28 July 2016 he was arrested and later sentenced to 15 months’ imprisonment for offences of using forged identity card and taking up unlawful unemployment.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [8-19] 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 two non-bank creditors who are loan sharks and triad members because he was unable to repay them the loans.  He claimed that he borrowed 500 million Vietnamese Dong from a bank to start his transport business in 2012.  In February 2013, he borrowed 300 million VND from a loan shark, Phim, to repay interest to the bank.  At the end of 2013, he further borrowed 200 million VND from another loan shark, Noi, to repay the interest to the bank and Phim.  In July 2014 his ship sunk in a typhoon, he could not carry on his business nor could he repay any interest or principal sums to any of his creditors or the bank.  On 3 occasions, he was assaulted by his non-bank creditors and threatened that he would be killed if he could not repay the debts.

The Director’s decision

4.By a notice of decision dated 15 June 2017, 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 further found that state protection is available to the applicant and internal relocation is a viable option for him, which further lower the level of risk.  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 2 March 2018.

6.By a decision dated 1 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 detailed reasons for rejecting the applicant’s claim at paragraphs [33-70] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board noted that the applicant did not immediately lodge his protection claim when he arrived in Hong Kong. It found the material facts and information provided by the applicant implausible or unreliable that affected his credibility [33];

(2)  the inconsistencies and implausibility in his evidence were serious and had undermined its reliability. The Board found him a dishonest and unreliable witness, and that he is not a genuine claimant [34];

(3)  there was no factual basis on which the Board could accept that he would be subjected to any risk of harm in his home country [35];

(4)  in any event, state protection is available [54] and internal relocation is an option without undue hardship for the applicant [70].

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 10 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.  In the affirmation in support, he repeated his claim saying that the decision of the Board is unfair.

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 and found him to be a dishonest and unreliable witness 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.  It rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

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.Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatments were of low intensity and frequency.  The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of serious or proscribed harm, if refouled.

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

20.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.

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