Le Van Thanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1482/2020

[2022] HKCFI 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1482 of 2020

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 applies for leave to apply for judicial review of the Decision dated 3 July 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application 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 had multiple illegal entries in Hong Kong and were subject to several deportation orders throughout the years. He was last deported to Vietnam on 12 January 2018. However, on 28 August 2019, he surrendered to the Immigration Department for illegal remaining. The applicant had previously lodged a torture claim on 23 August 2013, which was later taken as a non-refoulement claim and was rejected on 11 August 2014. The late application to appeal the refusal was also dismissed by the Board. On 28 August 2019 and 14 October 2019 respectively, the applicant lodged a subsequent claim. On 16 January 2020, the Director allowed the applicant to lodge the subsequent claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the loan sharks and he would be targeted by the Vietnamese officials.

5.The applicant’s previous claim consisted of the following background facts. He borrowed a loan from a loan shark in 2011 for his business. According to the applicant, he owned a big piece of farmland for his business. However, the government officials attempted to, and eventually successfully confiscated his land by force. The applicant was unable to carry on the business and his complaint to the government about the insufficient compensation was treated as committing a riot. He became a wanted person by the government, and fled to Hong Kong in May 2012. When he was deported back to Vietnam in September 2015, he was arrested upon arrival. During his detention, he was assaulted badly by the police officers. After a bribe, he returned home. Yet, the police officers kept looking for him. Meanwhile, the loan shark also assaulted him for defaulting the payments. In around late 2015 or early 2016, he fled to Hong Kong again.

6.In early 2018, he was deported back to Vietnam. His subsequent claim was based on another loan shark Anh, from whom he borrowed a sum to invest in his cattle business. Unfortunately, in mid-2018, the widespread infection collapsed his business. Thereafter, he was beaten up twice by Anh. Out of fear, he again fled to Hong Kong for protection. Details of his claims are set out at paragraph 7 of the Notice of Decision dated 22 April 2020 by the Director (the “Director’s Decision”) and paragraph 19 of the Board’s Decision as described below.

The Director’s Decision

7.The Director considered the applicant’s claim 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.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

8.By way of the Director’s Decision dated 22 April 2020 (“the Director’s Decision”), the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the loan sharks had shown no real intention to seriously harm or kill him [13]; (ii) the disputes with the loan sharks were private without state involvement and there was no evidence that he had suffered severe injuries in the alleged assaults [14]; (iii) there was no evidence to suggest that a fair and just trial would not be available to the applicant [15]; (iv) state protection would be available to him [16]-[20]; and (v) internal relocation was also a viable alternative [21]-[24].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 23 June 2020, the Board conducted an oral hearing for his appeal, during which he was given the opportunities to supplement his claim.

10.Having considered the evidence, the Board concluded that the applicant was not a witness of truth. In particular, the Board observed that the applicant was inconsistent about the details of the loan sharks. He also gave contradictory evidence in the oral hearing with those in his written statements. Besides, he was only threatened and mildly injured in the assault incidents. The Board also found that the power of the loan sharks was localized and that the alleged illegal activities of the government officials, even established, did not represent the stance of the Vietnamese authorities [22].

11.Further, after reviewing the country of origin information, the Board found that state protection was available to the applicant and that he could also relocate to Ho Chi Minh City and Hanoi [25]-[27]; [48]-[52].

12.For the aforesaid reasons, the Board rejected his claim and dismissed his appeal.       

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 14 July 2020 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said he did not agree with the decision of the Board and it was dangerous for him to return to his home country.

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 and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decisions 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.Those grounds in paragraph above are without evidential basis. They are not valid reasons to challenge the Board’s Decision.

19.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.

20.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 16^th day of June 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