Dinh Huu Van v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2569/2018

[2023] HKCFI 44

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2569 of 2018

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 8 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 last entered Hong Kong illegally on 25 August 2015.  On 1 September 2015, he surrendered to the Immigration Department.  On the same date, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Vietnamese government.

5.According to the applicant, he joined the Supreme Master Ching Hai Meditation Association in 1992 and started to follow the said religion.  The religion was established by supreme master Ching Hai and practiced five principles which included no lying, no eating meats, no sexual misconduct, no harmful acts to others and no drinking wine.  The applicant also knew the “Quan Tin method” of the religion which he was prohibited to disclose.  From 1995 to 2013, the applicant participated in the charity events of the religion and assisted others to meditate.  However, the Vietnamese government saw this religion as unorthodox and oftentimes suppressed their actions.  In 2014, the applicant’s house became the gathering spot for the practitioners for their Sunday meditations.  One day in 2014, the police intervened the gathering and threatened to arrest them if they did not leave.  Two months later, the police intervened again and arrested the applicant for preaching the religion.  After he was released, he continued to meditate with other practitioners.  On 5 June 2015, ten armed public security officers came to find the applicant and wanted to arrest him for an offence of preaching the unauthorized religion.  Informed by his mother about this news, the applicant fled to other areas before eventually coming to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 7 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 his refoulement was assessed to be low.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) there was no evidence that he was personally targeted by the government [13]; (iii) there was no evidence that the police had ever taken any actions to harm him [14]; (iv) on the evidence, the government didn’t actively intervene their activities as they could still practice meditation with only minimal interventions [15]; (v) state protection would be available to him [16]; and (vi) internal relocation was a viable alternative [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 10 September 2018, the Board conducted an oral hearing for his appeal, during which it also clarified the material aspects of the claim with him [70].

9.The Board considered the country of origin information (“COI”) relating to the freedom of religion in Vietnam [19]-[23].  It also considered the information on supreme master Ching Hai and Quan Yin method [24]-[30].  Then, it proceeded to considered the evidence.  The Board noticed that there were only three interventions and the applicant was not injured in these incidents [53].  It also considered the alleged administrative violation record which was the crux of the applicant’s claim and found that it was most likely to be a forged document [54]-[60]; [79]-[80].  Further, as revealed on its website, the nature of the said association was not a religion [61]-[62].  Meanwhile, certain details of the applicant’s evidence on the said religion was inconsistent with those revealed on its website [63]-[66]; [71]-[75].  In passing, the Board also noted that the applicant’s mother, who was a follower of the said religion, was not disturbed by the authorities [81].  Insofar as the documentary evidence was concerned, the Board found that they were only general information which did not assist the applicant’s case [82]-[83].

10.In light of the aforesaid, the Board found that the applicant’s claim lacked credibility [84]-[87].  For these 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

11.The applicant has filed Form 86 dated 15 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said his life will be in danger if he returns to Vietnam as the local authority will inflict more serious harm on him.

DISCUSSION

13.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).

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

15.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.”

16.The Board had assessed his case and, for the reasons it has given, did not accept his evidence on the facts of his case. There is no valid reason to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 10^th day of January 2023

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