Ngo Van Duong v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2423/2020

[2021] HKCFI 1681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2423 of 2020

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 4 September 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  He is now being detained by the Immigration Department.

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 had come to Hong Kong illegally and was arrested by police on numerous occasions previously.  He was charged, convicted, sentenced and repatriated back to Vietnam.  The last occasion when he was arrested by police for illegal remaining in Hong Kong was on 17 May 2012.  He raised non-refoulement claim by way of written representations on 22 January 2014 and 27 September 2018.

5.He claimed that if refouled, he would be harmed or killed by his creditor, from whom he had borrowed 80 million Vietnamese currency and he was unable to repay the money to the creditor.  The creditor had gone to his house and made demands.  He was beaten up by the creditor and his people.  He was threatened that they would use other method to deal with him.  He sustained injuries to his legs and hands.  They also smashed his belongings in the house.  He had complained to police.  But police demanded money from him.  He had no money to pay.  He is an AIDs patient.  He had received medical treatment in Hong Kong.  Details of his story 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 29 March 2019 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that there was no substantial reason for believing that there would be any real risk of his being harmed or killed if he returned to Vietnam or lack of treatment of his AIDs disease in Vietnam [11]; that state protection would be available to him [12]; that HIV treatment would be available and the issue of social stigma was addressed in Vietnam [15-17] and internal relocation was an option open to him [19].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He appeared before the Board on 16 August 2019.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board generally accepted his evidence that he was indebted to the creditor and that he had been threatened and mistreated by the creditor because he was unable to repay his debt.  However, the Board found that he was unable to establish that state protection was not available to him [85]; that there was no evidence that the state was involved in the mistreatment [87]; that his reasons for coming to Hong Kong was, as he said, he believed that he would receive treatment for his AIDs [88]; that there were no substantial grounds for believing that he would be in danger if he returned to Vietnam [89]; that there was no evidence to establish BOR 2 risk [100] and he failed to establish Persecution risk if he returned to Vietnam [106-107].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 10 December 2020 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 did not agree with the Board’s Decision and that he would be in danger if he returned to Vietnam.

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 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 30^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