Dang Xuan Hung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 725/2019

[2023] HKCFI 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 725 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 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 25 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing his appeal against the Director’s Second Decision as described below (“the Board’s Second 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”), his application is dealt with 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 27 November 2014 and was arrested by the police on the same date. On 30 March 2015, 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 Binh.

5.In short, the applicant borrowed a loan from Binh for his fishing and prawn business. The business subsequently suffered a huge loss and was eventually forced to shut down in July or August 2014. However, since the end of 2013, Binh and his men had been chasing the applicant for repayment. They threatened and attacked the applicant in two occasions. Binh also took the applicant’s house as a partial settlement of the loan. He then evicted the applicant after June 2014. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 July 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk as the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[16]; (ii) the dispute was a private one without state involvement [17]; (iii) state protection would be available to him [18]-[21]; and (iv) internal relocation was a viable alternative [22]-[26].

8.For reasons set out in the Notice of Further Decision dated 13 July 2017, the Director also concluded that the applicant’s right to life would not be violated upon refoulement and dismissed his claim on BOR2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision to the Board. After considering the relevant legal principles and the applicant’s claim, the Board decided that it could fairly dispose his appeal on paper without an oral hearing [19]-[23].

10.The Board noted that the applicant was only attacked once. Apart from this attack, he was only verbally threatened. Meanwhile, his alleged injuries during the attack failed to attain a minimum level of severity [25]-[32]. In addition, the country of origin information (“COI”) showed that state protection would be available [33]-[35]. Further, this was only a private dispute without state involvement [42]. The COI also indicated the availability of internal relocation [45]-[48]. As a result, the Board, by the Board’s First Decision, rejected the applicant’s claim on Torture risk, BOR3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision.

11.In dealing with the applicant’s appeal against the Director’s Second Decision, the Board also adopted the approach that his appeal could be fairly disposed on paper without an oral hearing [9]-[14]. Having considered his claim under BOR 2 risk and the fact that the applicant did not file additional evidence, by way of the Board’s Second Decision, the Board rejected his claim on BOR 2 risk and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 15 March 2019 for leave to apply for judicial review of the Board’s Second Decision.

13.In his affirmation in support of his application he said that, if refouled, his life will be in danger. He is afraid that his creditor and his subordinates will inflict more serious harm or even kill him because he is insolvent.

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 Second 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 Second Decision should be examined with rigorous examination and anxious scrutiny.

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 in paragraph 13 above are not valid to challenge the Board’s Second Decision.

18.The Court does not find any error of law or procedural unfairness in the Board’s Second 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 him leave to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.

Dated the 23^rd day of February 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