Nguyen Van Hoa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 240/2022

[2022] HKCFI 2224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 240 OF 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant 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 18 February 2022 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 entered Hong Kong on 26 September 2019 as a visitor and was permitted to stay until 3 October 2019.  He did not depart and had overstayed since 4 October 2019.  On 12 August 2020, he was arrested by the police for overstaying.  On 14 August 2020 and 18 August 2020 respectively, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the gangster group named Dang Rong Den (“DRD”). 

5.According to the applicant, the dispute with DRD arose from an incident which, in June 2019, he witnessed the extortion of money against his mother in law by the DRD members.  The DRD claimed that the money was the fee for protecting his mother in law’s florist shop.  In an attempt to protect his in-law, the applicant was injured by a DRD member.  Thereafter, the applicant fought the attacker, which led to an assault against him lasting around three to five minutes.  The next day, the applicant and his family escaped to their home village.  In the fear that the DRD members would revenge, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 2 March 2021 by the Director (the “Director’s Decision”).   

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC 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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [12]; (ii) the DRD members had no real intention to harm or kill him [13]; (iii) the risk of harm from the DRD members, if any, was localized [14]; (iv) state protection would be available to him [15]-[18]; and (v) internal relocation was a viable alternative [19]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The oral hearing for his appeal was scheduled to be on 17 August 2021.  Nevertheless, the applicant failed to appear.  The oral hearing was then adjourned to 8 September 2021, during which he answered the Board’s inquiries with the assistance of an interpreter [11].  

9.The Board summarized the material aspects of his claim from his written statements and those provided before the Director.  It also considered the applicant’s oral evidence, his grounds of appeal and submissions [16]-[94]. Having reminded itself of the approach in assessing the evidence [95]-[110], the Board itemized the material aspects of the applicant’s claim as follows:

(1)   The Board accepted the general information in relation to the applicant’s background [111]-[113]; and

(2)   The Board refused to attach any credence to the applicant’s assertions in relation to the DRD, the mother’s florist shop, the extortion and assault incident, the revenge from the DRD members and the police visit.  The primary reason for such refusal was that these accounts contained significant inconsistencies [113]-[114];   

10.As a result, the Board found that the applicant’s evidence lacked credibility [121]. 

11.The Board then proceeded to consider the individual grounds.  It found that the applicant had no sustained any severe pain or suffering [141]-[142]; that state protection would be available to him [148]-[156]; and that internal relocation to Ho Chi Minh City, Ha Hoi or Nha Trang was a viable option for the applicant [157]-[163].  As a result, the Board rejected the applicant’s claim on Torture risk [164].  Based on the same findings of facts, the Board also rejected the applicant’s claim on BOR2 risk, BOR3 risk and Persecution risk.

12.For the above reasons, the Board rejected the applicant’s 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 21 April 2022 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 does not agree with the Board’s Decision, he cannot go back and his life will be in danger if he returns to his 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.The Board had assessed his case and did not accept his evidence on the facts of his case. Those grounds in paragraph 14 above 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 3^rd day of August 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