Tran Cong Du v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 740/2019

[2023] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 740 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 4 March 2019 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 2 March 2016 and was intercepted at Lo Wu Control Point on 3 March 2016. On 10 April 2016, he lodged a non-refoulement claim on the basis of a loan dispute with his creditor Dung.

5.In brevity, the applicant borrowed a loan from Dung in 2015 to purchase a fishing boat. However, a storm destroyed the boat and the applicant lost his source of income. He took up employment as a driver but the income was insufficient to repay the loan and thus he defaulted the loan payments in mid-2015. Thereafter, Dung and his wife had been visiting the applicant’s home, threatening to harm or kill them if the applicant could not settle the loan. 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 5 July 2018 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 an unlikelihood of future risk of harm [11.1]; (ii) the conducts of the creditor did not exhibit a real intention to harm or even kill him [11.2]; (iii) the threats, if any, were localized [11.3]; (iv) state protection would be available to him [12]-[15]; and (v) internal relocation was a viable alternative [16].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 December 2018, the Board conducted an oral hearing for his appeal, during which he testified [19].

9.The Board considered the country of origin information, particularly those related to loan sharks and illegal loan collecting activities [31]. It proceeded to consider the credibility of the applicant’s evidence. It noted that the applicant was inconsistent with the date of the loan, whether it was from 2007 or 2015; that he had not provided any documents for the loan; that his evidence about the interest of the loan was changing; that how much he had paid for the interest payment was inherently contradictory; and that the deadline for repaying the loan was also different [39]-[44]. The applicant also provided different accounts in relation to Dung’s loan collecting conducts [46]-[47]. All these discrepancies were not satisfactory explained by the applicant.

10.Meanwhile, the loan dispute was a private one without state involvement [56] and the injuries of the applicant or his wife, if any, failed to attain a minimum level of severity [60]. Coupled with the finding of availability of state protection [64]-[65], the Board found the applicant’s claim was unsubstantiated.

11.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

12.The applicant has filed Form 86 dated 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant reiterated the reasons he came to Hong Kong. But he did not raise any specific ground.

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.

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 Board had assessed his case and did not accept his evidence on the facts of his case. There is no valid reason from the applicant 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 7^th day of March 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