Case Document

100%Judiciary

HCAL 244/2021

[2021] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 244 of 2021

BETWEEN

	Pham Van Khoa	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 10 February 2021 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 citizen of Vietnam. He came to Hong Kong in 2015 and sought torture claim asylum. His application failed and was repatriated back to Vietnam in 2018. On 14 November 2019, he was arrested by police for theft. He was sentenced to 18 months’ imprisonment for the offences of theft, staying in Hong Kong without the consent of the Director and for breach of the removal order. At present, he is being detained in Hei Ling Chou prison.

5.He claimed that if refouled, he would be harmed or killed by his creditor. In 2012, he had borrowed a loan from the creditor for his fishing business. The creditor was connected with triad and police. He was able to pay the interest initially. In 2013, his business failed and he was bankrupt. His creditor brought some people to his home to demand payment of debt. He asked for time and was given three months’ extension. He was warned that if he was unable to pay, he would be killed. He got a job on a fishing boat where he lived in order to avoid the creditor. In November 2015, he considered that it would be dangerous to stay in Vietnam as he might be located by his creditor. He decided to leave Vietnam for Hong Kong. In Hong Kong, he still has contacts with his mother in Vietnam. His mother told him that his creditor had been looking for him and he warned her that if he saw the applicant, he would kill him. Details of the incidents are set out in paragraph 7 of the Director’s Decision described below.

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 5 November 2020 (“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 or killed if he returned to Vietnam was assessed to be low [12]; that state protection was available to him [19] and internal relocation was an option open to him [24].

The Board’s decision

8.The applicant appealed against the Director’s Decision to the Board. He attended the hearing before the Board on 19 January 2021.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that if he returned to Vietnam, police protection would be available to him [66]; that internal relocation was an option open to him [71] and that there was no reasonable ground to believe that the risk to life he would face in Vietnam was genuine and substantial and that there was no well-found fear of persecution risk.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 26 February 2021 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that he wanted to review the Board’s Decision because he disagrees with the Decisions of the Director and the Board as they are grossly unfair and unjust.

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 are only his opinions without substance and they do not assist his application.

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 12^th day of May 2021

(M. O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12 May 2021 Pham Van Khoa Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 May 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17404/20/11/72/V2637 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 596/20 (Formerly RBCZ 10510/20) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)