Nguyen Duy Phuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 755/2019

[2023] HKCFI 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 755 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 12 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 10 June 2017 and surrendered himself to the Immigration Department on 12 June 2017. On 2 October 2017 and 8 November 2017 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the loan shark, Nguyen Van Toan (“Toan”).

5.In short, the applicant borrowed a loan from Toan in March 2015 for his seafood trading business. Initially, he was able to afford the interest payments. However, his business suffered a huge loss and he had been defaulting the repayments since November 2015. Toan started to threaten and assault the applicant for the loan payments in December 2015. Unable to cope with the harassments, the applicant came to Hong Kong. He was however deported for the first time as he was not aware of his right to seek international protection. Thereafter, he sneaked into Hong Kong again as he was informed that Toan was still looking for him. Out of fear, he decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 17 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 his claimed fear of harm from Toan was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) Toan had no intention to harm or even kill the applicant as he only intended to get the money back [14]; (iii) state protection would be available to him [15]-[18]; and (iv) internal relocation was a viable alternative [19]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 December 2018, the Board conducted an oral hearing for his appeal, during which he testified [16].

9.The Board considered the applicant’s evidence and also the country of origin information [18]-[31]. It found that the applicant had not produced independent evidence of the loan; that he was inconsistent about the details of the loan; that he provided different versions to the alleged assaults; that he did not request Toan to issue receipts after he repaid the interests; that he changed his story about the seafood business; that he was unable to describe the previous loans made in 2012; and that his decision to take out a high interest loan with Toan while he could borrow from the banks was illogical and unreasonable [38]-[48]. In these premises, the Board found that his claim lacked credibility [48].

10.In assessing the individual grounds, the Board found that there was no state involvement [52]; that the alleged injuries failed to attain the minimum level of severity [56]; and that state protection and internal relocation were both viable alternatives [59]-[65].

11.Therefore, the Board concluded that the applicant’s claim was unsubstantiated 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 said that, if refouled, his life would be in danger. His creditor and his men will inflict more serious harm on him or even kill him as 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 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 Decisions 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, for the reasons it had given, rejected the applicant’s evidence on the facts of his claim. The grounds set out in paragraph 13 above are not valid 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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 11^th day of April 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