Case Document

100%Judiciary

HCAL 94/2019

[2023] HKCFI 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 94 of 2019

BETWEEN
	Nguyen Van Trung	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 31 December 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”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Vietnam. He was last deported to Vietnam on 12 February 2004. In October 2014, he sneaked into Hong Kong again. On 13 October 2014, he surrendered to the Immigration Department and lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Hung.

5.In short, the applicant borrowed a loan from Hung in around 2009 for his fishing business. Initially, he was able to afford the interest payments. However, in July 2014, his ship sunk and business collapsed. He defaulted the repayments. One month after the incident, Hung started to chase for repayments. He threatened and assaulted the applicant and the wife. He also took the applicant’s house which only settled a part of the loan. Meanwhile, in one incident, the applicant’s finger was cut off. Out of fear, he fled to Hong Kong for protection. While he was in Hong Kong, he was told that his wife was kidnapped by someone who he suspected to be connected with Hung. She had, however, escaped. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 29 December 2016 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 was assessed to be low. In elaboration, the Director found that (i) the past experience and Hung’s conducts indicated an unlikelihood of future risk of harm. Meanwhile, the dispute was a private one without state involvement [15]; (ii) state protection would be available to him [16]-[20]; and (iii) internal relocation was a viable option [21]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 7 September 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence [23].

9.The Board accepted the applicant’s claim as to the money lending and the series of loan collection incidents [45]. It noted that the problem was purely a private matter [47]. It considered the country of origin information and found that the Vietnamese government had taken efforts to combat the loan sharking and other related criminal activities [48]-[60]. Thus, state protection was available [67]. 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

10.The applicant has filed Form 86 dated 10 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said that his life will be in danger if he returns to his country as the creditor and his subordinates will not spare him. He is unable to repay his debt. They will inflict more serious harm on him or even kill him.

DISCUSSION

12.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).

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

14.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.”

15.The grounds in paragraph 11, supra are not valid to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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 March 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14/3/2023 Nguyen Van Trung Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/3/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5797/17/1/81/V831 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2252/16 (Formerly RBCZ 3001738/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)