Pham Van Diep v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2728/2018

[2021] HKCFI 1542

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2728 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 Vietnamese national.  He surrendered to the Immigration Department on 27 July 2016 as an illegal immigrant.  He lodged his non-refoulement claim with the Immigration Department on 27 July 2016.

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 loan he had borrowed from the creditor.  He borrowed three hundred million Vietnam currency from his creditor for his pig-farm business.  However, because of the plague, his piglets died and his business failed.  He was unable to pay the interest to his creditor.  The creditor brought some subordinates to his home where they vandalized and assaulted him with bare hands and sticks.  They threatened to kill him if he was unable to repay the loan.  He believed that the creditor was connected with the police in Vietnam.  He had to leave home and come to Hong Kong.  Details of his story are set out in 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 February 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 or killed by his creditor if he returned to Vietnam was assessed to be low [11]; that state protection was available to him [16]; that there was no evidence that the state was involved [19] and internal relocation was an option open to him [20].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 14 September 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that his evidence on the facts was inconsistent with his statement given to the immigration officer [21]; that the assaults by his creditor and his subordinates did not amount to torture risk [23]; that it agreed with the Director that state protection would be available to him [27] and that internal relocation was an option open to him [45].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 3 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he reiterated that he would be killed by his creditor because he is unable to repay his debt.

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 ground in support of this application does 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 9^th 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