Dinh Khac Trung v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1391/2018

[2021] HKCFI 844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1391 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 submissions by the Applicant in open court.

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 June 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 31 December 2013.  He approached the UNHCR Sub-Office Hong Kong to seek for asylum.  He was arrested by police on 5 January 2014.  He then lodged his non-refoulement claim with the Immigration Department.

5.He claimed that if refouled, he would be harmed or killed by the creditors because he had borrowed money from them to run his fishing business, which failed. He was unable to repay the money to the creditors.  They had come to his home from time to time.  They did not harm his family.  But they had assaulted him with a stick on his temple.  His head bled. They also threatened to kill him if he did not repay the money.  He reported to police.  The police did not make investigations into the matter.  He suspected that it was because the creditor were well connected with the police and he did not have money to bribe them.  Fearing for his safety, he paid the agent to get him to China and from where he came to Hong Kong. Details of the incidents are set out in paragraphs 7-16 of the Board’s Decision.

The Director’s Decision

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 9 September 2016 (“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 sharks upon his return to Vietnam was assessed to be low [14]; that state protection was available to him [18] and internal relocation was an option open to him [23].

8.By Notice of Further Decision dated 15 August 2017 (“the Director’s Further Decision”), the Director found that he was unable to establish a personal and real risk of his right under the Hong Kong Bill of Rights being violated upon his return to Vietnam. [6]

The Board’s Decision

9.The applicant did not appeal against the Director’s Decision. He appealed to the Board against the Director’s Further Decision and attended the hearing before the Board on 30 April 2018.

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

(1)   The Board found that the applicant’s evidence was totally incredible and unreliable and his evidence was a pack of lies. [45] On this basis, the Board found that he was unable to establish his right under BOR 2 risk. [64]

(2)   State protection and internal relocation were available to him even if he were able to establish his claim. [63]

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 16 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he reiterated his claim that if he returned to Vietnam, he would be tortured or killed by his creditors because he was unable to repay the money he borrowed from them.

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.It is obvious that since the Board had rejected his evidence on the facts of his case, he has no factual basis in support of his claim on BOR 2 risk. Although the Board had only considered his appeal on the Director’s Further Decision, which is on BOR 2 risk claim, I find that even if he were to apply for leave to extend time to appeal against his claim on other risks, i.e. Torture risk, BOR 3 risk and Persecution risk, he does not have any reasonable chance of success in his appeal.

16.His ground in support of this application does not assist his application.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

Dated the 1^st day of April 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