Pham Quang Vinh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 26/2022

[2022] HKCFI 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 26 of 2022

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 of the Director of Immigration dated 25 October 2021 (the “Director’s Decision”) rejecting his subsequent claim application (“subsequent claim”).

2.The applicant had made a non-refoulement claim on 3 August 2015 (his “previous claim”), which was rejected by the Director of Immigration (the “Director”) on 4 May 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 then repatriated to Vietnam.

3.On 1 September 2021, he was arrested by Hong Kong police for illegally entering Hong Kong.  He lodged a non-refoulement claim on 6, 13 and 26 September 2021 respectively by written representations. He was advised by the Director to supply additional information to support his subsequent claim and to ask for duty lawyer service. On 26 September 2021 and 8 October 2021 respectively, he submitted written additional information to the Director.

4.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.

5.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 

6.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, Hieu because he was unable to repay his loan from Hieu, which he had spent on his clothing business but failed. Hieu and his gangsters had gone to his home where they beat him up and threatened him. That was why he had come to Hong Kong. Between 2015 and 2017, his family members had repaid his debt to Hieu. He therefore returned to Vietnam in 2017.

7.In 2018, he borrowed 500 million Vietnamese Dongs from Mr. Tien and Hieu respectively for setting up his café business. Because of pandemic COVID – 19, his business failed and he was unable to pay his debts to his creditors. The creditors and their subordinates had, for a number of times, beaten him up and they threatened to kill him.

The applicant’s previous claim

8.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”).

9.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 Hieu and followers upon refoulement was assessed to be low as seen from their past conducts, which did not show that they intended to harm him seriously or kill him; that the state was not involved in the incidents, therefore state protection was available to him; that there was no evidence to show that the creditors were so influential or powerful to be able to locate him wherever he stayed in Vietnam; and that internal relocation was an option open to him. See paragraph 6 of the Director’s Decision.

10.The applicant appealed the Director’s decision to the Board. Having considered the evidence, the Board came to the same conclusions of the Director. It dismissed his appeal.

Application for subsequent claim

11.In his subsequent claim, the applicant stated that he borrowed money from Tien and Hieu respectively in 2018 after he returned to Vietnam.  Again, he defaulted payments to the creditors because of his business failure.  He claimed to be beaten by the Tien and Hieu and their respective subordinates.

12.The Director considered the issues and applied the law on his subsequent claim. Under section 37ZO (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.

13.The Director considered the applicant’s new grounds made in support of his subsequent claim.  The Director observed that these new grounds were, in fact, the same story for his previous claim where he claimed that Hieu and his subordinates would harm or kill him because of his inability of repaying his loan. Although he had another creditor Tien, the reasons for his subsequent claim were the same. The Director and the Board had considered and rejected them. In particular, there was no evidence that the state was involved in the lending business and that state protection was therefore available to him. Also, alternative relocation was an option open to him too. There is no evidence from the applicant to refute these two important factors.      

Application for leave to apply for judicial review

14.The applicant filed Form 86 on 10 January 2022 for leave to apply for judicial review of the Director’s Decision.

15.In his affirmation in support of his application, he said, “I don’t agree Immigration Department or TCAB reject my case. I do JR review my case. I cannot come back my home country because I will danger to my life.”

DISCUSSION

16.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).

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

18.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.”

19.The Board decided to deal with the applicant’s appeal on paper, having considered the Court of Appeal’s decision in ST v Betty Kwan CACV 115/2013. Although the Board had not specified the factors in this case to support its decision of not conducting an oral hearing for the appeal, the fact that the Board did not raise the credibility issue of the applicant’s evidence, coupled with the fact that the Board had relied upon the applicant’s evidence to evaluate the risks he alleged, I can see no injustice to the applicant for not having an oral hearing for his appeal. Under the circumstances, the Board is, under section 12A of Schedule 1A of the Ordinance, entitled to deal with the appeal on paper.

20.Since the applicant has no application for leave to apply for judicial review of the Board’s Decision, the Board’s Decision has become final. This is his application for leave to apply for judicial review of the Director’s Decision.

21.It is clear that the Director has come to his conclusion that the reason for the applicant to leave Vietnam and stay in Hong Kong is to avoid his creditors. This reason had been considered in his previous claim by the Director and the Board. He is quite entitled to find that, given the change of circumstances after his previous claim, the additional information will not give him any realistic chance of success in his subsequent claim.

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

23.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.

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

CONCLUSION

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

Dated the 8^th day of March 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