Bui Van Toan v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1197/2021

[2022] HKCFI 42

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1197 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.The applicant had made a non-refoulement claim on 26 November 2015 (“his previous claim”), which was rejected by the Director of Immigration (the “Director”) on 20 April 2017.  His appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision was dismissed by the Board on 3 May 2019.  He was repatriated to Vietnam on 21 May 2019.

2.On 1 July 2021, he was arrested by the Hong Kong police for illegally entering Hong Kong on the day before.  He lodged a non-refoulement claim on 9 July 2021 and 14 July 2021 respectively (“his subsequent claim”).  On 26 July 2021, the Director received the applicant’s written submission for his non-refoulement claim, which the Director treated it as his subsequent claim under the Unified Screening Mechanism as he had made his previous claim.  By Decision dated 19 August 2021 (the “Director’s Decision”), the Director rejected his subsequent claim.

3.Under section 37ZR[1] of the Immigration Ordinance, Cap. 115 (the “Ordinance”), the Board has no power to hear any appeal from the decision of the Director on a subsequent claim.  Therefore, the applicant took out this application for leave to apply for judicial review of the Director’s Decision.

4.He is now being detained by the Immigration Department.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the RHC, the matter is dealt with on paper.

The applicant  

5.The applicant is a national of Vietnam.  In his previous claim, he claimed that if refouled, he would be harmed or killed by his creditor Minh and followers because he was unable to repay the debt.  From July 2013 to September 2015, because the applicant failed in his fishing business and was unable to repay his debt to Minh, Minh came to the applicant’s house to threaten him and assault him on one occasion with a wooden stick for around 5 to 10 minutes.  In the previous occasions when the applicant was able to meet the interest payments, Minh left him alone.  However, when he was unable to repay any, Minh threatened to destroy his house and kill him.  Out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision and paragraphs 2 to 7 of the Board’s Decision.

The applicant’s previous claim

6.In his previous claim, 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.The Director rejected his previous 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 Minh and followers upon refoulement was assessed to be low [10]-[14]; that state protection was available to him [15]-[19]; and that internal relocation was an option open to him [20]-[24].

8.The applicant appealed the Director’s decision to the Board.  On 14 March 2019, the Board conducted an oral hearing for the applicant’s case, during which the applicant provided clarifications to his claim.

9.After hearing the applicant, the Board found that his account was not credible and rejected his version of events as untruthful.  For example, he had provided inconsistent evidence on matters surrounding his fishing business [25]-[33].  His oral evidence on the debt was also different from that in his non-refoulement claim form [34]-[45].  Further, the applicant did not provide any medical evidence as to his alleged injuries [46].  The Board also refused to accept his allegation that Minh was influential as the applicant was able to leave his home village safely [47].  As a result, the Board found that the applicant’s account was not credible [50]-[54]. Besides, the Board opined that the applicant’s dispute with Minh was purely private [68]-[69].  In any event, state protection and internal relocation was available to the applicant [70]-[115].  Thus, the Board rejected his claim on all applicable grounds and dismissed his appeal.  

Application for subsequent claim

10.In his subsequent claim, the applicant stated that he borrowed money from Doan and Binh respectively in 2019 and 2020 when he returned to Vietnam.  Again, he defaulted both payments because of his business failures.  He claimed to be beaten by the local police and sustained injuries.

11.The Director considered the issues and applied the law on his subsequent claim.  Under section 37 ZO (1) & (2) of the Ordinance, it provides:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b)   the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.”

12.The Director considered the applicant’s new grounds made in support of his subsequent claim.  The Director observed that these new grounds were not made in his previous claim as they were about two new creditors and the Vietnamese police officers [9-10].  Having examined these new grounds, the Director rejected his subsequent claim on the bases that (1) the Director had already found in the Director’s decision that the applicant was able to receive reasonable state protection and that the Vietnamese government was dedicated in combating the illegal moneylending activities. There was no evidence to show that any material changes happened in these aspects [12]; and (2) insofar as his claim to be attacked by the local police, the Director found that his report to the police station was accepted by the police.  There was no evidence to show that the local police would not investigate into this matter.  Further, on the applicant’s evidence, there was no indication that he would be harmed or killed by the local police [13].  For the above reasons, the Director found that there was no significant change of circumstances since his previous claim was determined, which would give a realist prospect of success to his subsequent claim and rejected his subsequent claim.     

Application for leave to apply for judicial review

13.The applicant filed Form 86 for leave to apply for judicial review of the Director’s Decision.

14.In his affirmation in support of his application, he stated that he did not agree with “Immigration Department TCAB reject my case. …. I cannot come back my home country.  Because I will danger to my life.”

DISCUSSION

15.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.  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).

16.The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

17.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.”

18.He has submitted no valid ground to assist his application.  The Director had considered his evidence and applied the appropriate law to his case.

19.The Court does not find any error of law or procedural unfairness in the Director’s Decision.  The Director’s findings are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

21.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 January 2022

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

[1] 37ZR.

  Appeal

A person aggrieved by a decision of an immigration officer may appeal to the Appeal Board if the decision is made in respect of the person under—

(a)     section 37ZE(4) or 37ZG(5) (decision not to re-open a torture claim);

(b)     section 37ZI(1)(b) (decision rejecting a torture claim); or

(c)     section 37ZL(1) (revocation decision made by an immigration officer).