Nguyen Duy Nhat v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 849/2018

[2022] HKCFI 38

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 849 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 7 March 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with 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 national of Vietnam.  On 9 February 2015, he surrendered to the Immigration Department for his illegal entry in Hong Kong and lodged a non-refoulement claim on the same date. 

5.The applicant claimed that if refouled, he would be harmed or killed by twenty Vietnamese workers because he was unable to pay their salaries.  According to the applicant, he was once a Vietnamese refugee in Hong Kong back in 1991.  However, he returned to Vietnam in 1993.  Due to a dispute with his village leader in 2013, he fled to Mainland China.  While in Guangzhou, he worked in a counterfeit goods factory.  In July 2013, his boss asked him to hire some more Vietnamese to help.  In October 2013, the factory closed down and the boss disappeared.  Since the applicant was the agent for the job, the Vietnamese workers started chasing him for the salaries.  Out of fear, he fled to Hong Kong for protection.  While he was in Hong Kong, his family informed him that the workers sent gangster members to chase the money and threaten to destroy his family and kill him.  Details of his story are set out at paragraphs 5 to 27 of the Notice of Decision dated 4 July 2016 by the Director (“Director’s First Decision”) and paragraphs 2 to 10 of the Board’s Decision described below.

The Director’s Decisions

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 the Director’s First Decision, the Director refused his claim on the grounds of Persecution risk, BOR3 risk and Torture risk for the reason that his claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed by workers upon refoulement [32]-[34]; that reasonable state protection was available to him [35]-[39] and that internal relocation was an option open to him [40]-[44].  In a Notice of Further Decision dated 29 June 2017, the Director also rejected his claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return to his home country.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

8.The applicant appealed against the Director’s Decisions to the Board.  An oral hearing was held on 18 January 2018, during which the applicant gave evidence before the Board. 

9.After considering all the available evidence, the Board dismissed the applicant’s appeal.  The Board found that the applicant was an untruthful witness.  For example, the Board took into account the fact that the applicant did not seek protection as soon as practical after he entered Hong Kong as he had been staying underground for around 15 months [22]-[23].  The material aspects of the applicant’s claim had no documentary support [24].  The Board also found that the applicant had suffered no physical harms [25]-[30].  Thus, it concluded that there was no reliable evidence to support the applicant’s claim [31]-[35]. Further, state protection and internal relocation were both available in his home country [48]-[57]; [77]-[84].  For these reasons, the Board refused to accept the applicant’s claim on all applicable grounds [37]-[76]. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 16 May 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said “… I am unable to go back to Vietnam because I fear for my life.  I would like to appeal against the Immigration Order for my deportation.  In Vietnam a rumor saying that I joined a movement that was against our resent government and [I] was singled out and persecuted ….”

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(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.”

15.He has submitted no valid ground in support of his application.  The Board found that he was not a truthful witness and rejected his evidence in support of his claim. Thus, he has no factual basis in support of his claim.

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 to show 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 7^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