Le Van Trien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2638/2018

[2021] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2638 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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 September 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 on 15 August 2016 and surrendered to the Immigration Department. He lodged his non-refoulement claim on 5 January 2017.

5.He claimed that if refouled, he would be harmed or killed by the creditor in Vietnam. He also said that he would not be able to support himself because he is a AIDS patient. He had borrowed 500 million Vietnam currency for his poultry farming business in 2008. His business failed and he was unable to repay the debt or the interest. The creditor brought his people to see him and demanded payment. They did not harm him initially. After several demands and he was unable to pay, they hit him and caused bruise and swellings on him. He did not report to police. In 2010, he committed illegal trafficking of motorcycles and was sentenced to 6 year and 3 months’ imprisonment. The creditor approached his parents for his whereabouts. After his discharge from prison, the creditor came to him, threatening him that if he did not pay the debt, they would kill him. He came to Hong Kong in 2016. Details of the incidents are set out in paragraph 6 of the Director’s Decision described below.

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 19 October 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed if he returned to Vietnam was assessed to be low [11]; that state protection was available to him [13] and internal relocation was an option open to him [16]. His claim of having AIDS, which he will be unable to have medical treatment financially is not a reason for protection under the Convention. [27]

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. The Board, having considered the authority of ST v Betty Kwan [CACV 115/2013], decided to deal with the appeal without a hearing.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board seems to have accepted the applicant’s evidence and found that he did not have the torture treatment within the context of section 37U of the Ordinance [23]; that state protection would be available to him [36 & 44]; that the Vietnam government would provide medical care for AIDS patients [40]; that the applicant’s case did not fall within the ambit of BOR 2 risk [47]; that the applicant’s case would not pass the threshold of the standard as required under BOR 3 [51] and that his case was a private debt case, which did not involve the state and did not fall within the ambit of Prosecution risk [55]. Further, the Board found that internal relocation was an option open to him. [62]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 22 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that he was still unable to pay the debt and that he would be in danger if he returned to Vietnam and subjected to torture or slavery, possibly be killed. He further said that his case had not been properly assessed as the Board had not considered his physical torture and risk of life.

DISCUSSION

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

13.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.”

14.His grounds in support of this application do not assist his application as they are his opinions without specifics. The Board has obviously considered his evidence and given reasons for its decisions.

15.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.

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

CONCLUSION

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

Dated the 6^th day of May 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