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

HCAL 446/2021

[2021] HKCFI 2175

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 446 of 2021

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 11 January 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.He is now being detained by the Immigration Department.  By memorandum to the Registrar of the High Court, the Director of Legal Aid Department informed the Court that the applicant applied for legal aid on 21 May 2021.  By virtue of section 15 of the Legal Aid Ordinance, Cap. 91 and regulation 7A of the Legal Aid Regulations, Cap. 91A, the matter should be stayed for 42 days, subject to the Court’s Order otherwise provided.  The deadline for the stay is 2 July 2021.  This Form CALL-1 is prepared on 20 July 2021.

3.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.

4.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

5.The applicant is a citizen of Vietnam.  He had come to Hong Kong illegally and was repatriated back to Vietnam for several times.  He had committed crimes and was sentenced to imprisonment several times in Hong Kong.  The last time he came to Hong Kong illegally was on 24 August 2019.  He was detained at Lai Chi Kok Reception Centre.

6.He claimed that if refouled, he would be harmed or killed by the creditor and the drug traffickers and he would also be arrested by police.  He had given a rather convoluted story to the immigration officer.  His mother had borrowed 200 million Vietnamese currency from a creditor for building their house.  They were unable to pay the debt.  The creditor demanded him to carry illegal work of trafficking dangerous drug for him.  He escaped and went to Hong Kong.  He was arrested and repatriated back.  He was detained by the police.  Police asked him to be their spy to catch the drug traffickers.  He complied with the police’s request.  Therefore, he was the target of the creditor, the drug traffickers and the police if he returned to Vietnam.  Details of his story are set out in paragraph 11 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 27 February 2020 (“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 evidence for believing that he would be harmed or killed as he alleged if he returned to Vietnam [15]; that state protection was available to him [18] and that internal relocation was an option open to him [21].

The Board’s Decision

9.The applicant appealed against the Director’s Decision.  He appeared before the Board on 7 September 2020.

10.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board had conducted a rather protracted cross-examination of his evidence at the hearing.  It came to the conclusion that because of the inconsistencies, contradictions, implausibility, incredibility and impossibilities, it dismissed his evidence as made-up story only [212-213].  The Board found that there were no threats from the Public Security, the creditor or the drug traffickers and there was no debt from the creditor.  In a nutshell, the Board rejected his evidence of the facts of his case.  However, the Board further found that state protection was available to him [245-250] and internal relocation was an option open to him [ 251-267].  His claim on all the risks above failed.

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 29 March 2021 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that he did not agree with the Director or the Board.  He simply cannot go back to his country or he will be in danger.

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 grounds in support of this application do not assist his application.  The Board was quite entitled to find the facts after considering his evidence at the hearing.

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 prospect 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 29^th day of July 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