Case Document

100%Judiciary

HCAL 2471/2018

[2022] HKCFI 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2471 of 2018

BETWEEN
	Trinh The Cong	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 Decisions dated 1 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application 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. He entered Hong Kong illegally on 14 November 2014 and surrendered to the Immigration Department on 17 November 2014. He lodged a non-refoulement claim on the same date. The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Dung because of his default in repaying the loan.

5.According to the applicant, he borrowed loans from the creditor in 2012 and 2013 for the expansion of his marine farm business. However, in summer 2013, the typhoon had destroyed his business, resulting in the applicant’s loss and incapacity to repay the loans. In around July or August 2013, he again borrowed from the creditor to repay the costs of his staff and the rental fee of the marine farm. In 2014, the applicant was attacked by the creditor and the associates twice, causing him injuries. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out in paragraph 6 of the Director’s Decision and paragraph 12 of the Board’s Decision as 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 23 November 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 upon refoulement was assessed to be low [12]-[16]; that state protection would be available to him [17]-[21] and that internal relocation was an option open to him [22]‑[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. He attended the scheduled hearing on 2 October 2018, during which he gave oral evidence before the Board.

9.The Board noticed that the applicant gave inconsistent accounts in relation to when and why he got the loans from the creditor [27]-[29] and thus it was unable to accept the applicant’s claim on the existence of the loan [30]. The Board also noted his inconsistencies with regard to when he started to default the loans [31]. Further, the Board found that the applicant failed to provide credible evidence as to the alleged assault and injuries [32]-[42]. In light of these unresolved inconsistencies, the Board refused to accept that the applicant was a credible witness. Even taking the applicant’s case to the highest, the Board found that state protection was available to him [43]-[46]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds. In any event, the Board found that internal relocation was a viable option to the applicant [62]-[69]. Therefore, it dismissed the applicant’s appeal.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 6 November 2018 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 could not go back because he was unable to pay back the debt. His life would be insecure.

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 applicants’ 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.The applicant does not have 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 that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

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

Dated the 2^nd day of March 2022

(Chasel MAN)
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 2/3/2022 Trinh The Cong 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 2/3/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5400/16/12/47/V683 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2415/16 (Formerly INCZ/3002109/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)