Le Khac Cuong v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2473/2018

[2022] HKCFI 3394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2473 of 2018

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 1 November 2018 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 illegally on 10 August 2015 and surrendered to the Immigration Department on 12 August 2015. On the date of surrender, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Chieu.

5.According to the applicant, he borrowed a loan from Chieu to fund his fishing business in March or April 2011. However, in May 2014, his business collapsed due to an incident in which his fishing boat sank. While he was able to repay the loan for the first few months, starting in September 2014 when he needed to pay for his child’s tuition fee, he defaulted the payments due to financial difficulties. Since then, Chieu had been threatening and harassing him. In July 2015, the applicant escaped to another village. At the advice of his friend, the applicant decided to flee to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 March 2017 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 alleged harms failed to attain the minimum level of severity [12]; (ii) Chieu and the followers had no real intention to cause serious harm or even kill him [13]; (iii) the dispute was private without state involvement [14]; (iv) Chieu’s influence was localized [15]; (v) state protection would be available to him [16]-[20]; and (vi) internal relocation was a viable option [21]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 18 September 2018, the Board conducted an oral hearing for his appeal, during which he clarified several aspects of his claim [48].

9.The Board considered the country of origin information (“COI”) [22]-[25]. It concluded that the state protection would be available to the applicant [25]. It also noted that internal relocation was a viable alternative [26]-[31].

10.Further, the Board assessed the applicant’s evidence. It found that his evidence was questionable and unreliable. In particular, the Board noted that he provided inconsistent evidence as to when his fishing boat was ready for business; that it was illogical for him to take out a high-interest loan to fund a business that he had no prior experience; that there was no actual threat against the applicant or his family; that the creditor did not intend to cause any harms to the applicant but merely wanted to chase for repayments; and that the applicant’s evidence on Chieu was based on hearsay information [52].

11.In addition, the Board found that there was no state involvement in this private monetary dispute [54]. Coupled with the availability of both state protection and internal relocation, the Board found that the applicant’s perceived harms were not substantiated [55]-[58].

12.In light of the aforesaid findings, 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 6 November 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said if he returned to Vietnam, he would be killed by his creditor because he was unable repay the debt.

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 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 14^th day of November 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