Luong Vinh Sinh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1342/2018

[2021] HKCFI 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1342 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 1967, is a national of Vietnam.  He was first arrested in Hong Kong in 1999 for offences including possession of forged instrument and sentenced to 12 months’ imprisonment.  After he served his sentence, he was deported back to Vietnam in January 2000.  On 14 March 2016, he surrendered himself to the Immigration Department claiming that he sneaked into Hong Kong from Mainland China.  He was subsequently released on recognizance.  In January 2017, he lodged a non-refoulement claim by a written representation.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [17-33] 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 police.  He claimed that in May 2015, at the order of his employer, he climbed up a tree to cut off some branches.  He carelessly cut a telephone cable next to the branches.  On the following day, he was arrested by local police officers.  Four of the police fisted and kicked his chest and back for about 15 minutes and then took him to a prison.  In the prison he explained to the officer in charge of the prison, Nguyen, that he cut the telephone cable out of carelessness.  Nguyen disbelieved him and detained him alone in a small room.  He was not allowed to engage a lawyer and not allowed to see his family members.  He was questioned during his detention everyday and assaulted by plastic tape or electric pole at his head and belly.  On several occasions, he had blood when he coughed.  It was only after his elder brother bribed Nguyen that he was arranged to have medical treatment in hospital where he was hospitalized for two months, and it took 6-7 months before he fully recovered.  After he was discharged, he was sent back to prison.  Since his body was weak, he was allowed to return home to rest.  Police officers came to his home to check him out, but they did not assault him further or arrest him.  He later learned from his ex-schoolmate, who was a police officer, that the police would re-arrest him soon for the offence of damaging national property and breaking the public order.  In fear that he would be sent to prison again, he decided to leave Vietnam for China.

The Director’s decision

4.By a notice of decision dated 2 January 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The Director was doubtful of the credibility of the applicant’s claim.  He noted that the applicant’s passport was issued on 31 December 2014, ie before he was arrested.  Nevertheless, the Director proceeded to consider the risk based on the events claimed by the applicant.  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 30 April 2018.

6.By a decision dated 4 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 [42-57] of its decision.  In a nutshell, the Board first noted that at the hearing, the applicant confirmed that he was detained in prison from May to July 2015, then he was allowed to return home.  He left Vietnam in March 2016.  From July 2015 to March 2016, he had no trouble with the police because his elder brother bribed them.  It accepted that the conduct of the police officers, if true, was no doubt improper.  However, there was no evidence of any serious injuries and he received medical treatment for two months and even allowed to return home to rest.  The treatment he received did not fall within the meaning of “torture”.  Moreover, he did not report the matter to a higher authority, such as the Ministry of Public Security which has a department specialized in investigation of corruption.  Further, the Board noted that the applicant was allowed to return home in July 2015.  From July 2015 to March 2016 (when he left Vietnam for Hong Kong) the local police gave him no troubles at all.  The information given by his ex-schoolmate that police was soon to arrest him was purely hearsay.  The Board reasoned that had the police intended to frame up the applicant with false allegation, there would be no point to wait for eight months before he left Vietnam.  The Board found that the evidence suggested that the police had no further action against the applicant.  Having considered all the evidence, the Board found the applicant failed to establish that there are substantial grounds for believing that he would be subjected to torture or serious harm.  The ill-treatment also did not fall within the definition of persecution as the convention reasons were not established.  Further, the Board found that the applicant should have no difficulty to live in places other than his own district.

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.  He only repeated his claim saying that he disagreed 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 nevertheless examine both 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 gave his account of primary facts and events a favourable interpretation.  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 correctly identified the main complaint of the applicant was the way local police conducted their investigation and commented that the violence used in the investigation, if true, was no doubt improper.  However, the country of origin information revealed that the Vietnamese government had undergone reforms to combat corruption amongst police and to improve their efficiency.  The applicant did not seek assistance from other or higher authorities.  It was a speculation that had he done so, he would not get the assistance he wanted [42, 46].  The Board alluded to a finding, properly in my view, that the conduct of the local and individual police officers was only an abuse by rogue officials which is not authorised or tolerated by the state.  In any event, the abuse by the local police officers had stopped for eight months before the applicant left his country [47].  The Board therefore found that the applicant failed to establish that there are substantial grounds for believing that he would be subjected to torture, if refouled [48].  I agree with the analysis of the Board.

17.Even if he would be prosecuted for his careless cutting of the telephone cable, there was no evidence that he would not receive a fair trial or due process of law.  He was only in fear of prosecution rather than persecution.

18.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. 

19.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.

20.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.

21.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.

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

Disposition

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

Dated 11 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