Vu Van Chung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2104/2018

[2022] HKCFI 357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2104 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.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the interested party is the Director of Immigration (the “Director”).

2.This is the applicant’s application for leave to apply for judicial review of the Decisions dated 27 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall consider his application on paper.

The applicant

4.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 19 December 2015 and surrendered to the Immigration Department on 24 December  2015.  On 28 July 2016, he lodged a non-refoulement claim.

5.The applicant claimed that, if refouled, he would be harmed or killed by his creditor Hung and Hung’s followers as he defaulted the payments.  According to the applicant, he borrowed money from Hung to expand his seafood business in 2014.  However, his business went downhill and he started to default the payments.  Since December 2014, Hung and his followers constantly demanded the applicant for repayments and also threatened to kill him if he failed to do so.  Nevertheless, the applicant confirmed that he or his family were never physically harmed by Hung and Hung’s followers.  Feared that Hung would realize the threats, the applicant fled to Hong Kong for protection.  Details of his story are set out in paragraph 7 of the Director’s Decision and paragraphs 21 to 35 of the Board’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 8 March 2017, 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 refouled was assessed to be low [12]-[16]; that state protection would be available to him [17]-[22] and that internal relocation was an option open to him [23]-[29].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  He attended the scheduled hearing on 24 May 2018, during which he gave oral evidence.  

9.The Board accepted the general descriptions of the applicant’s loan in 2014.  However, it found that the applicant might have exaggerated the amount and the consequences of default repayment of the loan.  Further, according to the country of origin information, the Vietnamese government had been combating the illegally money lending activities [36]-[41].  The Board also found that the applicant was unharmed prior to his departure and that internal relocation alternative was available to the applicant [42]-[49].  Thus, the Board rejected his claim on all applicable grounds and dismissed his appeal [50]-[55]. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 3 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he attached the Board’s Decision to his affirmation and he said that his life would face with danger caused by the creditor and his underlings.

DISCUSSION

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

13.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).

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.The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

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 grant leave to the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 15^th day of February 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