Bui Van Dai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2669/2018

[2021] HKCFI 1285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2669 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 16 November 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 through China on 29 September, 2014, the same day he was arrested by police. He lodged his non-refoulement claim with the Immigration Department on 5 October 2014 by written representation.

5.He claimed that if refouled, he would be harmed or killed by his creditor because he was unable to repay his debt. He had a habit of gambling. He borrowed loans from the creditor. He managed to pay interest on the loans initially. But he was unable to do so later. He sold his motorbike to pay the interest. His grandmother had also paid some interest for him. Once, he had won some money and paid it to the creditor. But he was unable to pay off his debts. The creditor had sent some people to him to demand payment. They did not bring along any weapon. When he was unable to pay, they assaulted him with bare hands. He suffered some injuries. He did not complain to police because he did not believe police would help him. Because of the creditor sending people to him to demand payment, he had to move to other places and lived with his friends and relative. On a number of occasions, he was located by the creditor’s people and they assaulted him with bare hands. They threatened him that if he did not pay, they would kill him. In September 2014, he came to Hong Kong. Details of the incidents are set out in paragraph 7 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 20 October 2016 (“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 that he might be harmed or killed if he returned to Vietnam was assessed to be low [12]; that state protection was available to him [18] and internal relocation was an option open to him [20].

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board. He attended the hearing before the Board on 18 October 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reason that his evidence was rejected as untruthful. The Board did not accept that he had been ill-treated as he alleged and that there would be a real risk that he would be ill-treated or at the risk of arbitrary deprivation of life if he returned to Vietnam. [42] Although corruption exists in Vietnam, the Board had considered the favourable and unfavourable information to the applicant’s claim and came to its conclusion that there was no evidence that state protection would not be available to him. [58-63] Because of those reasons, the Board rejected his claim on those risks in paragraph 6 above.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 23 November 2018 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 considers that the Board was unfair in its approach in its assessment of the facts. It only relied upon evidence such as medical evidence or other evidence that he was assaulted, instead of considering the evidence as a whole. He considers that the Board was prejudicial when it assessed his evidence. He does not agree with the Board’s findings that it did not accept his evidence; that he was not subjected to ill-treatment or harm if he returned to Vietnam and that internal relocation is open to him. These findings are not objective and prejudicial. The Board should not reject his evidence because he was unable to remember the details of the loans. This is a superficial approach in the assessment of the evidence. The Board relied upon the country of origin information without verifying whether they are true. It only cherry picked the adverse information to his case. The Board had not considered the serious corruption in Vietnam as reported in the Vietnam Corruption Report and that the news in 2006 that the prime minister admittedly resigned for not being able to control corruption in Vietnam. The Board obviously had not considered all these situations in Vietnam before reaching its decision. The Board is in error in its assessment of his Persecution risk, Torture risk, BOR 2 risk and BOR 3 risk. It decisions should be set aside.

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 have been considered. They are largely his opinions without evidence in support of them. The Board is entitled to test the credibility of his evidence by relying on evidence, the burden being on him to convince the Board that the facts of his case are true. The Board has no duty to assume what he told it should be the truth, quite the contrary is true. Obviously, the Board had taken into consideration the country of origin information on the issue of corruption in Vietnam, both favourable and unfavourable to his case. The Board is at liberty to come to its conclusion on the facts of the case. The applicant’s grounds have no merits and they are rejected.

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 13^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