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

HCAL 2341/2018

[2021] HKCFI 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2341 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 1971, is a national of Vietnam.  On 4 August 2015, he surrendered to the Immigration Department and lodged a non-refoulement claim.  He claimed to have entered Hong Kong illegally from Shenzhen on 2 August 2015.  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 [6-11] 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.  He said that he failed to repay the debt of 800 million Vietnamese Dong he borrowed from his creditor, Binh, for his construction business.  He failed to repay the interest and loan since end of 2014.  He had been on a few occasions threatened by his creditor that he would be killed if he could not repay the debt.  In May 2015, he moved to Hanoi and on 25 July 2015, he left Vietnam for Mainland China and sneaked into Hong Kong later.

The Director’s decision

4.By a notice of decision dated 25 November 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^[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 20 June 2018.

6.By a decision dated 12 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim.  In a nutshell, the Board found the matter only concerns about a private money dispute.  The applicant already left Vietnam in 2015.  There is no evidence to show that Binh still has the intention to harm the applicant or he is the target of any attack.  Even if Binh is still looking for the applicant, he can seek protection of his country.  The Board found that there is reasonable state protection available to the applicant.  There are no substantial reasons for believing that he would be subjected to torture or ill-treatment, if he is refouled.

8.Having considered the totality of the evidence before it, the Board concluded that the applicant’s claim failed on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 25 October 2018 for leave to apply for judicial review of the decision of the Board.

10.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 that his creditor is still looking for him and that the decision of the Board is not fair.

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

Discussion

12.The relevant principles regarding appeals on non-refoulement cases 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.

13.When the applicant pursued his 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 the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  Thisdecision will only focus on the Board’s decision.

14.In the present case, the Board did not take issue with the applicant’s claimed primary events.  It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled.  The Board found that reasonable state protection is available to the applicant.

15.As mentioned above assessment of evidence, risk of harm, and availability of state protection 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.

16.The application form and affirmation of the applicant did not put forward any grounds or evidence in support to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  There is no reasonably arguable basis ground to challenge the findings of the Board.

17.Indeed, on the applicant’s own account, the past ill treatment was of low intensity and frequency.  It did not reach the level of severity required to constitute torture or CIDTP to justify the protection he sought. He did not report the matter to the local police or authorities.  He resided in Hanoi uneventfully for 2 months before he left Vietnam.  There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled.  The decision of the Board is eminently reasonable.

18.Having considered the decisions of both the Director and the Board with rigorous examinationand 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

19.For the reasons given, there is no prospect of success in the applicant’s intended application.  I refuse to give leave to apply for judicial review.

Dated 4 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