Trinh Te Toan v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 3645/2019

[2022] HKCFI 3703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3645 of 2019

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 present 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 October 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), he appeared before the Court on 30 November 2022.

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 in April 2014. On 12 November 2014, he surrendered himself to the Immigration Department. 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 the creditor, Tuan.

5.In short, the applicant borrowed a loan from Tuan for his restaurant. However, the restaurant eventually closed down. The applicant could only afford the first ten installments of interest payments. He was unable to repay the rest. On 15 February 2013, Tuan sent someone to visit the applicant and demanded him to settle the loan on or before 20 February 2013. Otherwise, the creditor would send someone to kill him. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 13 December 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 pain and suffering failed to attain a minimum level of severity [12]; (ii) he was never physically harmed [13]; (iii) there was no evidence that the creditor could locate him everywhere [14]; (iv) the dispute was only a private one without state involvement [15]; (v) state protection would be available to him [16]-[18]; and (vi) internal relocation was a viable option [19]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 3 July 2019, the Board conducted an oral hearing for his appeal, during which he testified [19].

9.The Board summarized the applicant’s oral evidence and considered the country of origin information [21]-[29]. It noticed that the applicant’s evidence on the details of the loan was significantly different [38]-[40]. It also considered that the applicant’s claimed purpose of the loan was implausible as the applicant had no prior experience in food business but he could still undertake the high risk of taking out a loan from a moneylender [43]. In addition, the Board refused to accept his new claim of being a member of an anti-government political party [45]-[47] and found that the new claim was newly invented to strengthen his claim [48]. In light of these discrepancies, the Board cast doubt on his credibility.

10.Further, the Board noted that the applicant was never physically harmed. The creditor simply wished to warn him for the repayments. The applicant’s claimed participations in the aforesaid political party was also illogical as he could remain free even after he claimed to take part in an arson against a gas station [59]-[63]. In any event, state protection and internal relocation were both viable alternatives to the applicant [64]-[72].

11.In these premises, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 6 December 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said he cannot return to Vietnam because he has no money to repay the loan and the gangsters in Vietnam will kill him.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he disagrees with the decisions of the Director and the Board. However, he had the service of an interpreter at the hearing before the Board and he was at liberty to give evidence before the adjudicator. If he can repay his debts, he will return to Vietnam.

16.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.”

17.The reasons given by the applicant are not valid reasons from to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 19^th day of December 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