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

HCAL 2584/2019

[2021] HKCFI 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2584 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 decisions 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 1981, is a national of Vietnam.  He arrived in Hong Kong on 16 December 2013 and was permitted to remain until 20 December 2013 as a visitor.  He overstayed and remained in Hong Kong unlawfully.  On 30 December 2013, he surrendered himself to the Immigration Department and lodged a non-refoulement claim.  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 [15] of the first decision of the Board dated 13 October 2016.  Put simply, the claim was based on the fear that, if refouled, the applicant would be arrested by police officers in Vietnam and savagely beaten.  He claimed that on 9 December 2013, his wife drove him on a motorbike in heavy rain.  She jumped a red traffic light on the way and they were stopped by about 4 police officers.  They insisted to tow away the motorbike but the applicant pulled it back.  During the scuffle, he unintentionally swept the police badge of one of the officers from his shoulder to the ground.  The officers accused him of preventing them from performing their duties.  The applicant ran away from the scene.  When he returned home, his wife told him she was let go after she told the officers her address.  On the same day he received at his home a summons issued by the police directing him to attend a police office on the next day.  According to the English translation of the summons produced by him, he was directed to present himself to the police office “to solve the matter: offence by means of conveyance”.  He had been told by others that it was a common practice for police officers to beat arrested persons.  As he was afraid he would be arrested and beaten, he did not attend the police office as summoned, but instead went to stay at a friend’s home.  He and his wife later decided to flee to Hong Kong having heard from neighbours that one could claim asylum there.  They left Hanoi by air for Hong Kong on 16 December 2013 through the arrangement by a travel agent.  They encountered no problem with the Vietnamese immigration on leaving their country.

4.The applicant’s wife had also filed a non-refoulement claim which was rejected by the Director and by the Board upon her appeal.  She is now the applicant in HCAL 1129/2018.

The Director’s decisions

5.By notices of decision dated 29 January 2016 and 3 March 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 in his first decision considered that there were no substantial grounds to believe that the police officers would ill-treat the applicant; that he would be charged without going through investigation or without a fair and proper judicial process; and that his perceived fear was real and foreseeable.  He noted that the applicant could leave Vietnam via the immigration authorities without encountering any problem which indicated that he was not a target of the Vietnamese police or government and that they had no adverse interest in the applicant.  According to the objective country of origin information, the Vietnamese authorities are willing and able to offer sufficient protection to citizens and have performed due diligence on their duties.  No sufficient evidence has been adduced to show that he would be personally at risk of being subjected to ill-treatment by the police due to his involvement in the traffic incident. The applicant’s claim was therefore rejected.

6.Subsequently the Director invited the applicant to submit additional facts on the ground of BOR 2 risk. Having considered the further submission of the applicant, the Director in his second decision rejected the claim on that ground as well.

7.The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decisions

8.Without holding an oral hearing, by its first decision dated 13 October 2016, the Board rejected the appeal/ petition on the BOR 3 risk, the persecution risk, and the torture risk.  By its second decision dated 15 July 2019, the Board further rejected the applicant’s claim without an oral hearing, confirming the Director’s decision.  The Board’s latter decision covered the BOR 2 risk.

9.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [16-20] of its first decision.

10.In a nutshell, the Board’s reasons can be summarized as follows: The Board considered the general principles and the circumstances under which an oral hearing is required as set out in ST v Betty Kwan, CACV 115/2013, [2014] 4 HKLRD 277. It accepted the applicant’s claimed account of the incident with the police and the summons issued by the police asking him to attend a police office.  It found that there was no dispute as to facts or law.  It concluded that in the circumstances, there was no necessity to hold an oral hearing.  On the alleged facts, the Board noted that neither the applicant nor his wife had been threatened or assaulted by the police in Vietnam.  His fear of being beaten if arrested upon his return is merely speculation based on hearsay as to the “common practice” upon arrest in Vietnam.  Based on the COI, the Board was satisfied that state protection is available to the applicant if required.  The Board found that the Vietnamese police did not take a very serious view of the applicant’s behaviour, and indeed even the applicant himself expressed his view that his behaviour did not amount to a serious crime in his NCF (QA 35 para 8).  It considered that the possibility he would be subjected to torture or harm was far-fetched and fanciful and not real.  The applicant could also be fairly considered to be a “fugitive from justice” for a minor offence, and that there is no evidence that he would not receive a fair judicial process upon his return.  The Board concluded that the applicant failed to show that he would face a real and substantial risk of being subjected to torture or CIDTP or persecution.  Accordingly, the Board dismissed the applicant’s appeal on then applicable grounds in its first decision.

11.On similar basis, the Board also dismissed the applicant’s appeal on BOR 2 ground without holding an oral hearing in its second decision.

Application for leave to apply for judicial review

12.The applicant filed a Form 86 on 4 September 2019 for leave to apply for judicial review of the decision of the Board.

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

14.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.  He only stated that he did not agree with the decision of the Board and that his life would be in danger, if refouled.

Discussion

15.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.

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

17.In the present case, the Board accepted the applicant’s account of primary facts and events relating to the alleged traffic incident and the summons issued to the applicant.  It however disagreed with the applicant on the risk of harm he would face 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 availability of state protection.

18.As explained above, the assessments of evidence, risk of harm, 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.

19.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.  The assertion that he did not agree with the Board’s decision and the repetition that his life would be in danger cannot constitute a valid ground of review.

20.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.

21.Indeed, I agree with the Board that the alleged risk of harm by the applicant at the hands of the police is far-fetched, fanciful and not real.

22.The evidence can hardly establish that there are substantial grounds for believing that the applicant would face a real risk of being subjected to any type of serious or proscribed harm, if refouled.

23.The Board did not hold an oral hearing.  As has been held by the Court of Appeal, there is no absolute right to an oral hearing, as the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26.  The Board had considered the authority and correctly applied the relevant principles.

24.There was no challenge with regard to procedural regularity and fairness.  Bearing in mind that the applicant personally attended the screening interview with the immigration officer with legal assistanceand the Board accepted the version of facts as advanced by the applicant, I do not find the course adopted by the Board to be irregular or unfair. 

25.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.

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

Disposition

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

Dated 23 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