Dinh Van Hoc v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1447/2018

[2021] HKCFI 718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1447 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 27 April 2015, he surrendered to the Immigration Department claiming that he had unlawfully entered Hong Kong.  He then lodged a non-refoulement claim.

3.He had previously entered Hong Kong in 2013 and found guilty of multiples offences including illegal remaining and possession of forged identity card, and sentenced to imprisonment for 15 months.  In September 2013, he lodged his first non-refoulement claim, but he subsequently withdrew his claim and was repatriated back to Vietnam in December 2013.

4.The facts of the case and the basis for the applicant’s present non-refoulement claim are summarized at para [3-20] 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 400 million Vietnamese Dong that he borrowed from a loan shark in 2009 for starting his business of importing garment from China.  In 2011 he failed to repay the loan and was assaulted by his creditor and his followers since.  He and his wife fled to Hanoi.  In January 2013, he and his wife left Vietnam for China and then sneaked into Hong Kong unlawfully.  During the imprisonment for his sentence, he lodged his first non-refoulement claim which was subsequently withdrawn because he learned from his parents that they had repaid his debt.  After he returned to Vietnam in December 2013, his creditor said that his family members had only settled half of his debt, and he must repay the balance within 3 months or he would be killed.  The applicant therefore left Vietnam for the second time for China.  However, he was arrested by the police in China and repatriated to Vietnam.  In March 2015, he again entered China unlawfully and later sneaked into Hong Kong.

The Director’s decision

5.By a notice of decision dated 14 October 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. Having taken into account all relevant circumstances including the low intensity and frequency of the alleged past ill-treatment, the Director assessed the level of future risk of harm at the hands of his creditor as low.  He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm.  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 for him on 30 May 2018.  A reminder letter was sent to the applicant’s address informing him of the intention of the Board to consider his appeal in his absence, asking him to explain in writing for his absence within 7 days.  No response was received by the Board.  The Board hence proceeded to consider his application in his absence.

7.By a decision dated 25 June 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.  The Board gave reasons for rejecting the applicant’s claim at para [43-88] of its decision.  In a nutshell, the Board noted that his creditor and followers only attacked him once with wooden pole and did not inflict more serious harm than they could.  They did not harm him after he returned to Vietnam and did not harm his parents after he left Vietnam.  These showed that they just wanted him to repay and had no intention to cause serious harm to him or to kill him [49].  It also did not accept that the ill-treatment he received attained a minimum level of severity as required by relevant law [53].  Moreover, it was only a private money dispute and he did not seek help from local police authorities [54-55].  Furthermore, the Board found that reasonable state protection is available to him and internal relocation is a viable option to the applicant [66-67]. Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 23 July 2018 for leave to apply for judicial review of the decision of the Board.  

9.The complaints in the Form 86 and affirmation can be summarized as follows:

(1)  No opportunity to attend a hearing before the Board –he claimed that the notice of hearing was sent to his old address and he never received it.

(2)  No medical examination – he claimed that the Director did not medically examine him.  The Board’s finding at para 53 of its decision that the applicant did not receive a severe level of harm was biased and unfair.

(3)  The Board quoted incorrect material which is inconsistent with situation in Vietnam.

(4)  The Board misunderstood the viability of internal relocation in Vietnam.

10.The applicant did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

11.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.

12.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 nevertheless examines the decision of the Director, it is unnecessary to delve into the decision of the Director.  This decision will only focus on the Board’s decision.

13.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 in fact rejected the applicant’s appeal/ petition for the reason that, based on the claimed primary events, low severity of previous violence and the availability of state protection and internal relocation, he did not face real risk of harm of being subjected to serious or any proscribed harm, if refouled.

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

15.The complaints raised by the applicant in his affirmation are all unmeritorious.

16.The first ground related to his absence at the hearing.  The applicant failed to attend the hearing scheduled for him and failed to give explanation for his absence.  It is reasonable for the Board to proceed to consider the appeal on the materials before it in the absence of the applicant.  The applicant claimed that he had not received the notice of hearing from the Board as it was sent to his old address.  The claim was unsupported by any evidence.  Even if it was true, it was the duty of the applicant to give the Board an address, and update it, to which correspondence or notice could come to his attention and in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address or any change of address would fall on the shoulder of the applicant.  In any event, he was interviewed by an immigration officer in the first-tier screening and the Board did not challenge the primary facts asserted by the applicant.  He could not have been prejudiced by his absence at the hearing before the Board.  The ground is devoid of merit.

17.The second complaint is unarguable.  The alleged assault by his creditor took place in 2011, any medical examination after he lodged his present claim would not have served any purpose to prove the assault.  In any event, according to him he only sustained bruises and was simply treated without admission to the hospital.  The severity of his injury is far from reaching the requisite level of harm required for international protection.

18.The remaining complaints also do not have any basis or evidence in support and the Board plainly fully and properly considered the objective COI before it.

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.

Disposition

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

Dated 25 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