Case Document

100%Judiciary

HCAL 1131/2021

[2021] HKCFI 2853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1131 of 2021

BETWEEN

	Le Toan Thang	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 13 May 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. He 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 first came to Hong Kong in February 2019 and was arrested by police. He was repatriated. On 17 March 2020, he was again arrested by police. He was charged with the offences of theft and remaining in Hong Kong without authority of the Director of Immigration. He was convicted and sentenced for 15 months’ imprisonment.

5.He claimed that if refouled, he would be harmed or killed by his creditor from whom he had borrowed 500 million Vietnamese currency. He was unable to repay his debt. The creditor came to his home with his underlings to demand payment. Since he was unable to pay, they assaulted him with fists and kicks. They had come to demand payment and assaulted him 3 times. They also threatened to kill him. He fled 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 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 9 November 2020 (“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 upon his return to Vietnam was assessed to be low [12]; that state protection was available to him [16] and that internal relocation was an option open to him [20].

The Board’s Decision

8.The applicant appealed against the Director’s Decision. He appeared before the adjudicator at the hearing.

9.The adjudicator, having cross-examined the applicant, dismissed his appeal and affirmed the Director’s Decision. The Board further found that it did not accept his evidence and at paragraph 76 of the Decision, it said:

“The Appellant’s evidence relating to the facts on which his claim was based was questionable and unreliable, and I did not find his evidence, even to the low standard applicable, to be credible. I am therefore unable to attach any weight to his evidence that there is a genuine threat to harm him by a moneylender in Vietnam. On totality of the evidence, I was not persuaded that he had borrowed from a moneylender and that he had been assaulted and threatened by a moneylender in Vietnam.”

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 11 August 2021 to apply 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 was not satisfied with the Board’s Decision and it was dangerous for him to return to Vietnam.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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 justified to reject his evidence after its evaluation of his evidence.

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 realistic 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 5^th day of October 2021

	(K.H. LI)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 05/10/2021 Le Toan Thang Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 05/10/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17435/20/11/103/V2652 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 574/20 (Formerly RBCZ 10505/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)