Dinh Khac Phi v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 893/2018

[2021] HKCFI 3366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 893 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 18 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 21 May 2018 is late.  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 consider his application on the papers.

The applicant

3.The applicant is a citizen of Vietnam.  He entered Hong Kong illegally from China on 24 November 2014 and surrendered himself to the Immigration Department on 25 November 2014.  On the same date, he lodged a non-refoulement claim by way of a written representation.

4.The applicant claimed that, if refouled, he would be harmed or killed by Nguyen Van Pha (“Pha”) and MI for not repaying the debts.  In around 2004, the applicant said that he started a coal trading and logistic business.  In order to expand his business, he borrowed 5,000,000,000 VND from Pha.  Pertinently, he confirmed during the interview before the Director that this was a private loan and Pha had no political affiliations. In early May 2006, his ship overloaded and sunk, causing the applicant all the financial loss.  Unable to repay the loan, starting from mid-2006, the applicant was threatened verbally by Pha two to three times per month.  He dared not report to the police who, in his belief, only assisted the rich. Between 2006 and 2012, the applicant paid PHA interest at around 500,000,000 VND but still can’t afford to fully repay the loan.  In early 2012, the applicant decided to start a business for trading jellyfish and borrowed loan from MI.  Again, in April 2013, he was cheated by his Chinese partners and unable to repay MI’s loan.  Thus, MI and his gangster followers visited his house around 6 to 7 times monthly and verbally threatened him.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraph 23 of the Board’s Decision.

The Director’s Decision

5.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”);

a.  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”);

b.  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

c.  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”).

6.By Notice of Decision dated 30 December 2016, 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 if he returned to Vietnam was assessed to be low [12]-[15]; that there was no evidence to show that the state was involved and therefore state protection would be available to him [16]-[20] and that internal relocation was an option open to him [21]-[25].

The Board’s Decision

7.The Board considered the legal principles in ST v Betty Kwan & Ors [2014] 4 HKLRD 277 and the material factors therein in determining whether an oral hearing should be held: [17]-[20].  After evaluating the applicant’s claim, the Board concluded that it was appropriate to dispose of the applicant’s appeal on papers [21]-[22] and proceeded accordingly. 

8.The Board found that, even on the applicant’s own evidence, the threats from Pha and MI were purely verbal without any physical harms inflicted on the applicant.  Further, the disputes were monetary in nature without any issues on race, religion, nationality, social group or political views.  Also, the applicant had never sought help from the law enforcements or the government.  His family and him were never subject to any harms from the authorities.  It was misconceived to argue that he would not have state protection.  Thus, the applicant’s claim on Persecution risk failed [24]-[35].  For the same reasons, his claims on BOR 3 risk, Torture risk and BOR 2 risk also failed [36]-[45].  In any event, internal relocation was available to him, for instance, he had once stayed in Thành phố Móng Cái, another city in Vietnam, without being located by his creditors [46]-[48].  As a result, the Board dismissed his appeal.

Application for leave to apply for judicial review

9.The applicant filed Form 86 on 21 May 2018 for leave to apply for judicial review of the Board’s Decision.

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

 i.  the Board’s Decision should not be made without an oral hearing;

 ii.  the Board had underestimated his risks because he would not have state protection as the police are corrupt and the creditors are cruel to him;

 iii.  the Board in its Decisions paragraphs 33-35 states that the Vietnamese government is combatting corruption and the creditor would be subject to criminal sanction, which is the adjudicator’s opinion without practical experience of living in Vietnam; and

 iv.  the reason for the delay is that he did not receive the Court’s letter and he had instructed his solicitor to make enquiry.

DISCUSSION

11.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.  The delay is, of course, serious. However, I shall first consider the merits of the applicant’s case.

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. (1) .… …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.  The Board had considered the relevant authority before deciding that an oral hearing was not necessary, which is permissible under the Ordinance.  The Board did not question his credibility or raise any issue on the facts he alleged.  On those accepted facts, the Board applied the relevant laws to his case.  There is nothing amiss in his decision.  The Board can rely upon the country of origin information, which says that the Vietnamese government is endeavouring to combat corruptions in Vietnam.  The Board is entitled to rely upon the information.  It is not necessary for the adjudicator to live in Vietnam for the information.  The Board had not underestimated his risk because it had accepted the applicant’s alleged facts.

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 realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 17^th day of November 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