Vo Anh Dung v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2829/2018

[2021] HKCFI 2671

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2829 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 11 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 10 December 2018 is late for about 2 months. I shall deal with this issue below.

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 by boat on 26 July 2015.  On 27 July 2015, he surrendered to the Immigration Department and lodged non-refoulement claim on 4 December 2015.  He was released on bail.  He was arrested by police on 27 October 2017 for criminal offence.  He was sentenced to 4 months’ imprisonment for theft.

5.He claimed that if refouled, he would be harmed or killed by his creditor called Lam and his people.  He had borrowed 700 million Vietnamese currency from Lam for his fishing business, which failed.  As he was unable to repay the money, Lam and his subordinates had, on a number of occasions, gone to the place where he resided and worked to demand payment of money.  They had assaulted him seriously causing injuries to his body.   He was admitted to hospital for treatment.  He had to move to work and live in other places.  However, Lam and his people managed to locate him.  He had 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 Decision

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC 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 5 March 2018 (“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 Lam and his people if he returned to Vietnam was assessed to be low [12]; that state protection would be available to him [19] and that internal relocation was an option open to him [25].

The Board’s Decision

8.The applicant appealed against the Director’s Decision.  He attended a hearing before the Board on 29 May 2018.

9.By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  The Board had raised doubts in his evidence in relation to the incidents allegedly happened in Vietnam. It came to its conclusion that his evidence was not reliable and it could not make favourable decision based upon those facts.  It therefore dismissed his appeal [44].  However, the Board went on to assessed the risks and found that there was no evidence to show that Lam’s people were triad members [46 & 47]; that Lam and his people were unable to locate him after he moved to work elsewhere, therefore he might relocate himself [48].  The Board also found that state protection would be available to him, thereby reducing his risk [49] and that internal relocation was an option open to him [53].  Upon the finding of the facts, the Board dismissed his claim on all risks above.

Application for leave to apply for judicial review

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

11.In his affirmation in support of his application, he set out the following grounds:

(1)  the Board did not obtain a medical report of his injuries and made its decision of not believing that he sustained injuries, referring to paragraph 26 of the Board’s Decision, which is unfair;

(2)  the Board cherry picked the evidence: it took very minute details of the incidents and compared them between his statement and his evidence and disbelieved him for the inconsistencies without considering the big issues of his injuries and his friend going to the police to complain but ignored;

(3)  the Board had made unreasonable assumption that those people he saw on the street might not be triad members and that the creditor could not find him because he was not found by them when he was somewhere else and said that relocation was an option open to him, ignoring the fact that the creditor might find him one day.

DISCUSSION

12.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall first consider the merits of the applicant’s case.

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 him. Ground (1) is a point of no substance because the Board disbelieved his statement that he was lying outside whereas the alleged attack was indoor and the adjudicator did not believe the attackers would pull him outdoor.  The issue of medical evidence never arose.

16.Ground (2) is only his comment on the way the adjudicator assessed his evidence. Since the adjudicator has a duty to ensure that his evidence is believable, he had to take the details of the events in the applicant’s statements given to the immigration officer and his evidence before the Board. One has to bear in mind that the adjudicator has no other means to test his evidence other than by way of cross-examination.  In fact, the adjudicator had taken on board the issue of his friend going to the police station to make the complaint and the police did not make investigation.  He considered that the applicant might complain further to higher level since one police station’s practice should not be representative of the police force in Vietnam.

17.Ground (3) is another example of the way the Board assessed his evidence.  He alleged that those people he saw were triad members.  The Board questioned the basis of his conclusion and refused to accept his view that those people were triad members.  However, this issue is not significant as the applicant said they attacked him.  They were the thugs in any event, if the applicant’s fact is right.

18.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.

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

CONCLUSION

20.I therefore refuse to extend time for the applicant to apply for leave to apply for his intended judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of September 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