Case Document

100%Judiciary

HCAL 2702/2018

[2021] HKCFI 1433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2702 of 2018

BETWEEN

	Nguyen Duc Trong	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 30 August 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 lodged his non-refoulement claim with the Immigration Department on 18 August 2014.

5.He claimed that if refouled, he would be harmed or killed by his creditor and his subordinates because he was unable to pay off his debt.

6.In 2012, he borrowed 300 million Vietnam currency from the creditor in order to set up a pawn shop together with his partner in Vietnam. In 2013, his partner ran away with the money. He was unable to repay the creditor. The creditor and his subordinates went to his home for payment. They assaulted him and his parents, smashing the articles in the house. One of them hit his head with a glass, causing injury to his head. They threatened that he and his family would be killed if he was unable to pay off his debt. On one occasion, he was kidnapped by the creditor’s subordinates to a remote house where he was tied up and hung up from the roof. He was tortured by the people. They assaulted him, scorched his arms with red hot iron rod, put a mattress on his back, then hit him with a plastic hammer. He became unconscious. When he came round, he came to know that he was rescued by a nearby farmer. He had to live in various places away from his home in order to avoid his creditor and his subordinates. His creditor had gone to his home to look for him. He also demanded the applicant’s parents to sell their house. They refused and were assaulted. In 2014, he decided to leave Vietnam for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

7.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”).

8.By Notice of Decisions respectively dated 15 August 2016 (“the Director’s Decision”) and 3 March 2017 (“the Director’s Further 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 of killed by the creditor if he returned to Vietnam was assessed to be low [11]; that state protection was available to him [14]; that there was no evidence to show that the state was involved [16] and internal relocation was an option open to him [19]. Also, there was no evidence to establish that BOR 2 risk was engaged in his case. See paragraph 6 of the Director’s Further Decision.

The Board’s Decision

9.The applicant appealed against the Director’s Decisions. He attended the hearing before the Board on 29 March 2018.

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

(1) The Board did not have serious doubt in his story.

(2) The Board found that the Vietnamese government had tried their best to combat corruption and illegal lending. [67] The applicant failed to establish that he would be subjected to persecution within the context of the Convention if he returned to Vietnam. [68]

(3) The applicant failed to establish that he would be subjected to BOR 2 risk. [70]

(4) The Board found that the applicant faced no genuine and substantial risk of being subjected to ill-treatment if refouled to Vietnam. [76]

(5) The Board found that there was no state acquiescence, active or passive, in the applicant’s case. [83-85]

(6) The Board found that there was no foreseeable, real, personal and present risk of torture to the applicant if he returned to Vietnam. [86]

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 28 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that the Board selectively considered the evidence against him and therefore was not fair. Examples can be found in the assessment such as that it did not consider the fact that he was injured by a glass bottle; that he was kidnapped and tortured and he fainted; that police did not take action without bribe. The Board also failed to consider objective evidence that the high level of the government, even the Prime Minister was reported to have accepted bribes in the newspaper. Its conclusion that the high level officials of the government is not corruptive is not true.

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.I have considered his grounds in support of his application. I reject his grounds for the reasons as follows:

(1) the Board had considered the Director’s Decisions and affirmed it, therefore those reasons as stated in the Director’s Decisions should be taken into consideration as well;

(2) in the Director’s Decisions, the Director found that internal relocation is an option open to him, which he has not raised objection;

(3) the allegation that the Board selectively chose the evidence against him is only his opinion, which is not supported by evidence as shown in the Board’s Decision;

(4) objective evidence shows that corruption is a criminal offence in Vietnam and officers who have committed the offence are subject to the sanction of the law, the news report is the evidence to show that even the Prime Minister is not above the law;

(5) the evidence shows that it is a personal debt without any state involvement throughout the incidents.

16.Although I notice that the Board had not taken into consideration the issue of internal relocation in its Decision, a factor that is usually considered by the Director and the Board where the applicant’s evidence on the facts of his case is accepted, this issue has been taken on board by the Director’s Decision, which the Board adopted. The Court of Appeal held in TK v Michael Jenkins Esq and Director of Immigration [2013] HKC, 526, CA, that if internal relocation is available to the applicant and it is not unduly harsh for him to relocate, there is no justification for affording international protection under either the Refugees Convention 1951 or the Torture Claims [32 & 33].

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

CONCLUSION

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

Dated the 26^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 26 May 2021 Nguyen Duc Trong 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 26 May 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4517/16/8/236/V367 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 536/16 (Formerly RBCZ 3001587/14)(T8S53) & RBCZ 9000378/17 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)