Tran Van Phong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2707/2018

[2021] HKCFI 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2707 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 25 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Vietnamese national. He came to Hong Kong illegally by boat on 22 January 2014. He surrendered to the Immigration Department on 15 April 2014. He lodged his non-refoulement claim with the Immigration Department on 14 May 2014.

5.He claimed that if refouled, he would be harmed by a loan shark because his mother failed to repay her loan to the loan shark. His mother borrowed a loan of one billion Vietnamese Dong from the loan shark in 2012. The money was for him to set up a business of seafood. He bought a boat for his business. In July 2013, a hurricane destroyed his boat. His mother was unable to repay her loan. The loan shark brought some people with him to demand repayment. They had weapons with them. He was assaulted by them. He tried to hide himself and live in his uncle’s place. They found him and went to assault his parents. They also threatened to kill the family if the loan was not repaid. The matter was reported to police. But police did not investigate into the matter as they might have been bribed. In 2014, he decided to leave Vietnam for Hong Kong. Details of the incidents are set out in paragraph 6 of the Director’s Decision.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 26 November 2017 (“the Director’s Decision”), the Director refused his claim on Torture risk, BOR 3 risk and Persecution risk for the reason that his claim was not substantiated. The Director found that the level of risk of harm from the loan shark upon his return to Vietnam was assessed to be low [12]; that state protection was available to him [15] and internal relocation was an option open to him [16].

8.By Notice of Further Decision dated 3 March 2017, the Director rejected his claim on BOR 2 risk as he failed to establish a personal and real risk of being arbitrarily deprived of his life if he returned to Vietnam [6].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision and attended the hearing before the Board on 16 October 2018. [77]

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons as set out below.

(1)  The applicant’s evidence was unreliable and the Board did not accept his evidence that his mother had borrowed a loan from a loan shark and that he had been threatened and assaulted by the loan shark. [94]

(2)  State protection was available to him. [90]

(3)  Internal relocation was an option open to him. [92]

(4)  For the reason that his factual evidence was not accepted, the Board rejected the applicant’s claim on Torture risk [102], BOR 3 risk [108], Persecution risk [109] and BOR 2 risk [111].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 29 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmations in support of his application, he said that he was not satisfied with the Director’s Further Decision and that his life would be in danger if her returned to his country.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15.His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The Board had considered the merits of his case before it made its Further Decision not to extend time to the applicant to file his 2^nd Notice of appeal. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 10^th day of 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