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

HCAL 2336/2018

[2021] HKCFI 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2336 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:

1.  Extension of time for the application for leave to apply for Judicial Review be refused; and

2.  Application for leave to apply for Judicial Reviewbe dismissed.

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 decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1961, is a national of Vietnam.  Record of the Immigration Department reveals that he first entered Hong Kong as a visitor in March 2003 and overstayed until he was arrested in March 2006.  He was then sentenced to 19 months’ imprisonment for offences including possession of offensive weapon and forged identity card.  In April 2007 he was deported back to his country after he served his sentence.  On 13 July 2010, he was arrested by Hong Kong police and sentenced after conviction for offences including possession of forged identity card and breach of deportation order for a total of 24 months’ imprisonment.  He made an asylum claim to UNHCR in 2012 and non-refoulement claim to the Director in March 2014.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [3-23] 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 creditors, (ii) the Vietnamese government.  He said that he failed to repay the debt of 1 billion Vietnamese Dong he borrowed from 2 loan sharks in May 2007 to establish his building materials business.  In 2008, he was forced to sell his business to enterprises of Vietnamese government but he could only obtain 0.35 billion for the compulsory sale.  He repaid 0.3 billion to his creditor and still owed them 0.7 billion.  The creditors came to his home with weapons to force him to give the title deed of his house as security.  He refused and sought assistance from the local police station.  Upon his creditors showing the loan agreement, the police indicated that they could not intervene in their debt dispute.  On 26 May 2010, the applicant was injured in an attack by his creditors with weapons.  He reported to the local police station again but the police officers refused to accept his complaint.  They even hit his arm with their police baton.  At the spur of moment, he scolded the officers and pulled the national flag and poster down from the notice board before he fled.  He did not seek assistance from other police stations or higher authorities.  In fear of harm by his creditors and the arrest by police, in July 2010 he fled to Mainland China via Mongcai city.  He then sneaked into Hong Kong from Shenzhen. He claimed that the Vietnamese police colluded with the triad societies.  Moreover, he would be tortured or even sentenced to death penalty by Vietnamese authorities because pulling down national flag and propaganda poster was an insult to the Vietnamese government.  His government hence would not offer protection to him.

The Director’s decisions

4.By notices of decision dated 18 July 2016 and 27 April 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  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 applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 15 August 2017.

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

7.The Board gave reasons for rejecting the applicant’s claimat para [45-102] of its decision.  In a nutshell, the Board found the applicant’s creditors are more concerned with the repayment of the loan rather than to seriously harm or kill him.  It was a private loan dispute.  The creditors only intended to exert pressure for him to repay the loan.  If they had the intention to carry out their threat, they would have done so when he was in hospital.  Moreover, he was only physically attacked once and his injuries were not very serious.  The medical documents he produced did not refer to any permanent disability.  The Board found that there was no evidence of the involvement of the Vietnamese government in the private money dispute.  The acts of individual police officers did not amount to acts of the government, or the consent or acquiescence of the acts of his creditors by the state.

8.As for the claim that he would be tortured or even sentenced to death by the Vietnamese government, the Board found that the “warrant of arrest” produced by the applicant was only a “notice to attend” to explain why he scolded the police officers and pulled down the national flag and poster.  The document could not prove that he was wanted by the police.  Moreover, even if he was indeed wanted, he would be punished after trial.  According to Vietnamese law, the sentence for desecrating national flag and emblem is detention in labour camp or imprisonment from 3 months to 3 years’ imprisonment.  There was no evidence that he will not receive a fair trial or he would be tortured or sentenced to death.

9.The Board also found that reasonable state protection is available to the applicant at his request, and internal relocation is a viable option to him.

10.Having considered the totality of the evidence before it, the Board concluded that the applicant’s claim failed on all applicable grounds and his appeal was dismissed.

Application for leave to apply for judicial review

11.The applicant filed a Form 86 on 24 October 2018 for leave to apply for judicial review of the decision of the Board.

12.In the Form 86, the applicant did not set out his grounds for relief sought.  In his affirmation in support, he only repeated his claim of feared harm at the hands of his creditors and that the decision of the Board is unfair to him.

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

Discussion

14.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 and COI materials, 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.

15.When the applicant pursued his appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decisions of the Director.  This decision will focus on discussing the Board’s decision.

Application out of time

16.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 

17.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.

18.In this case, even counting only from the 3-month time limit which expired on 26 June 2018 the application was late by almost 4 months.  The delay was substantial and the applicant did not provide any explanation for the delay.  I do not see any satisfactory or valid reason for the delay.

Merits of the intended application

19.As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

20.In the present case, the Board did not take issue with the applicant’s claimed primary events about the attack by his creditors and the incidents in the police station.  It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled.  Further and in any event, the Board found that state protection is available and internal relocation is a viable and reasonable option for him.

21.As mentioned above assessment of evidence, risk of harm, availability of state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

22.The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a regurgitation of his claimed fear of harm at the hands of his creditor and a bare assertion without evidence in support that the Board’s decision was unfair.  There is no reasonably arguable basis to challenge the findings of the Board.

23.I also agree with the Board that there was no evidence to support the allegation that the Vietnamese government colluded with the applicant’s creditors or that the state acquiesced to the improper acts of his creditors.  There was also no evidence to substantiate his claim that he would be tortured or even sentenced by death penalty for his acts in the local police station.  An appropriate punishment for his criminal acts proved after due process of law does not amount to torture or CIDTP or persecution.

24.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.

Disposition

25.For the reasons given, there is no prospect of success in the applicant’s intended application.  In the absence of good reason for his delay in the application, I refuse to grant extension of time and dismiss his application for leave to apply for judicial review.

Dated 2 March 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