Pham Sinh Cung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2704/2018

[2021] HKCFI 1495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2704 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 23 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 citizen of Vietnam.  He came to Hong Kong illegally on 30 March 2015 and surrendered to the Immigration Department the next day.  He lodged a non-refoulement claim with the Immigration Department on 31 March 2015.

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

6.He was a construction contractor in Vietnam.  In 2014, he was short of money to pay the wages of the workers.  He borrowed 70 million Vietnam currency from the creditor for the workers’ wages.  He was unable to pay off the debt.  The creditor together with four subordinates went to his home to demand payment.  Upon hearing that he was unable to pay, they attacked him to the floor for some five minutes.  He suffered bruises and swellings all over his body.  They forced him to sign on a piece of paper, acknowledging that he owed the creditor 120 million Vietnam currency.  They threatened him that if he could not repay the debt, they would kill him.  He left his home and lived in the parks in order to avoid the creditor.  In March 2015, he came to Hong Kong.  He has been in contact with his father, who told him that the creditor went to look for him from time to time.  Details of his story are set out in paragraph 9 of the Director’s Decision described below.

The Director’s Decision

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 Decision dated 15 December 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 of harm or being killed if he returned to Vietnam was assessed to be low [15]; that state protection was available to him [19] and internal relocation was an option open to him [25].

The Board’s Decision

9.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 10 August 2018.

10.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that although it accepted that the applicant had borrowed the loan and his creditor together with his subordinates had attacked him to demand payment, it considered that it was a personal loan business between the applicant and the creditor [38] without the involvement of the state [44]; that he would have state protection back home [60]; that he would not face substantial and real risk of torture if he returned to Vietnam [64]; that he would not be subjected to torture or cruelty under BOR 3 risk [76]; that he failed to establish persecution under the Convention [87] and that he failed to establish his case under BOR 2 risk [94].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 29 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he maintained that he would be subjected to harm and being killed by the creditor if he returned to Vietnam.

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

16.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.

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 2^nd day of June 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