Ta Duy Tham v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 487/2019

[2021] HKCFI 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 487 OF 2019

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 1960, is a national of Vietnam.  According to record of the Immigration Department, he first entered Hong Kong in 1988. When his application for asylum was refused, he voluntarily returned to his country in 1992.  On 24 March 2016, he surrendered to the Immigration Department claiming that he had unlawfully entered Hong Kong.  He then lodged a non-refoulement claim and was subsequently released on recognizance.

3.He had also previously entered Hong Kong illegally on 3 other occasions in 2001, 2003 and 2004.  During his illegal stays in Hong Kong, he had been found guilty of multiple offences including illegal remaining, possession of offensive weapons in public place, possession of arms and ammunition, attempted to rob and breach of deportation order.

4.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [24-33] 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 his creditor.  He said that he failed to repay the debt of 800 million Vietnamese Dong that he borrowed from a loan shark in 2012 for his aquaculture farm business.  Since March 2015 when he failed to repay the loan, he had been assaulted by his creditor’s followers. They also suggested that he and his son could help them in trafficking dangerous drugs and smuggling but he refused. He was beaten up by them with bare hands every time. He could not put up with the situation and left Vietnam on 20 March 2016 via Mainland China for Hong Kong.

The Director’s decision

5.By a notice of decision dated 29 November 2016, the Director rejected the applicant’s non-refoulement claim as he assessed the applicant’s future risk of harm as low. He also found that the availability of reasonable state protection and internal relocation option would further lower or negate any risk of harm.  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

6.The applicant failed to attend the hearing before the Board scheduled on 2 November 2018. A reminder letter was sent to the applicant’s last known address reported by him, but no response was received by the Board. The Board hence proceeded to consider his application in his absence.

7.By a decision dated 11 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

8.The Board gave reasons for rejecting the applicant’s claimat para [39-75] of its decision.  In a nutshell, the Board noted that his creditor and followers never carried with them weapons to beat him up.  They had chances to cause grievous bodily harm to him but they did not.  These showed that they just wanted him to repay.  It also did not accept that the ill-treatment attained a minimum level of severity as required by relevant law [64-65].  Furthermore, reasonable state protection is available to him [56].

9.Having considered the totality of the evidence before it, the Board concluded that the applicant did not face genuine and substantial risk of being subjected to ill-treatment, if refouled [66].

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 20 February 2019 for leave to apply for judicial review of the decision of the Board.  

11.In the Form 86, the applicant did not set out his grounds of review.  In his affirmation in support, he repeated what he told the Director and the Board about his inability to repay the loan and his belief that his creditor would inflict more serious harm on him or even kill him, if refouled.  He did not request an oral hearing.  The application is therefore considered on the papers. 

Discussion

12.The relevantprinciples 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.

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 also examine the decision of the Director, this decision will only focus on discussing the Board’s decision.

14.In the present case, 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. It found that the ill-treatment he received did not attain a minimum level of severity and there is reasonable state protection available to him.  On the totality of the evidence available to the Board, it found that the applicant would not face genuine and substantial risk of being subjected to ill-treatment if refouled.

15.As mentioned above, assessment of evidence, risk of harm, and 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 their decisions unless there is a public law ground for the court to do so. 

16.What was stated by the applicant in the Form 86 and supporting affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a regurgitation of what he told the Director and the Board, which has been duly considered. There is no reasonable ground to challenge the findings of the Board.

17.The Board scheduled an oral hearing but he failed to attend. The applicant also failed to respond to a subsequent reminder by the Board. In the circumstances, the Board was entitled to consider the appeal in the absence of the applicant. In any event, the Board accepted the version of facts as asserted by the applicant. He could not have been prejudiced by his absence.

18.Even on his own account, the past ill treatment was of low intensity.  He did not report the incidents of assault and threatening to the local police or authorities.  There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled.

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 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