Case Document

100%Judiciary

HCAL 821/2019

[2023] HKCFI 1339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 821 of 2019

BETWEEN
	Hoang Hong Giang	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative 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 22 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 4 April 2016. The next day, he surrendered himself to the Immigration Department. On the day of surrender, 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 authorities.

5.According to the applicant, while religious freedom was protected in Vietnam, the Vietnamese government closely monitored those who practiced Catholicism. In the end of December 2014, the applicant’s father recorded a priest’s sermon and distributed to the people in their home area. In February 2015, after a lengthy investigation, the public security officers and some triad members raided the applicant’s house, looking for his father. In July 2015, the applicant’s parents fled to Hong Kong.

6.Unable to locate the applicant’s parents, the public security officers detained the applicant and tortured him for information about his parents’ whereabouts. He was released after four days. However, he was called upon to the police station and tortured on a weekly basis afterwards. From September 2015 to March 2016, the applicant believed that he was a wanted person and started to flee in various places. Whenever he was caught, he was beaten by the security officers. As a result, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 September 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

7.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”).

8.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) there was no evidence that the Vietnamese government as a whole treated the applicant as a target [12]; (ii) the ill-treatments inflicted by the public security officers failed to attain a minimum level of severity [13]; (iii) the applicant’s perceived risk of harm was not imminent [14]; (iv) state protection would be available to him [15]-[18]; and (v) internal relocation was a viable option [19]-[24].

9.For reasons set out in the Notice of Further Decision dated 6 March 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on the ground of BOR 2 risk (the “Director’s Second Decision”).

10.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

11.The applicant appealed the Director’s Decisions to the Board. The Board held an oral hearing for his appeal. On the first day of the oral hearing, namely, on 18 May 2018, the applicant answered the Board’s inquiries (“First Hearing”). After the conclusion of the oral hearing, the Board saw the need to seek clarifications for matters arising therefrom. Thus, the Board directed an oral hearing to be held on 8 November 2018, during which the applicant attended and raised a point requiring further investigations (“Second Hearing”). In this premise, the Board adjourned the oral hearing to 20 December 2018. On that day, the applicant submitted a video which allegedly showed that the priest criticized the community party in the sermon (“Third Hearing”). The oral hearing was further adjourned to 24 December 2018 for the applicant to prepare the translation of the video (“Fourth Hearing”) [9]-[12].

12.The Board first assessed the credibility of the applicant’s claim. It noted the discrepancy in the applicant’s evidence as to the consequence the priest would face after criticizing the communist party in the sermon. At the First Hearing, he testified that nothing happened to the priest as the priest had supports from the Vatican and the international Catholic organizations. Yet, in his non-refoulement claim, he claimed that many priests would be arrested and brought to court [18]. In fact, the Board found that there was a law criminalizing the propaganda against the socialist republic of Vietnam which was only removed in 2015. Yet, according to the applicant, the priest was never arrested by the government. The Board rejected the applicant’s explanation that the priest had foreign supports and found that the priest was in fact arrested once before giving the sermon [19]-[21]. Meanwhile, it was implausible that only his father was targeted by the security officers [22].

13.On the Third Hearing, the applicant produced four articles in support of his evidence on the priest. He admitted that only one of the articles was related to the priest’s previous arrest. It turned out the priest was arrested for protesting against an environmental pollution [24]. There was no evidence suggesting that the priest was attacked by the gangsters as alleged by the applicant in the Second Hearing [25]. In addition, the Board reviewed the video produced by the applicant and found that the video was in fact, as conceded by the applicant, produced by a TV company instead of by the applicant’s father [25]-[31].

14.After considering the translation provided by the applicant, the Board found that the video did not advance the applicant’s case as it was not recorded by his father as alleged and, despite the priest chose to criticize the government, the priest was not, as stated by the applicant, punished in any form [33]. It was therefore neither here nor there.

15.Meanwhile, the Board also cast doubt on the applicant’s alleged assaults in the police station. It noted that there were significant discrepancies as to how the applicant was assaulted and the injuries he sustained [34]-[41]. The Board further noted that the applicant still went back to his family house after claiming that he had been running and hiding to save his own life [42]-[44]. It also found that the applicant was unable to explain why he could go through immigration checkpoints if he was a wanted person by the government [46].

16.In light of the aforesaid inconsistencies, the Board refused to accept the applicant’s claim as credible [50]. In any event, after assessing the country of origin information, the Board found that state protection and internal relocation were both available to the applicant [52]-[62]. In passing, the Board also found that the applicant only claimed to be pursued by the security officers for withholding his parents’ locations and that he was not adversely targeted due to his religion or political opinion [79]-[80]. As a result, for the aforesaid reasons, the Board found that he had failed to provide a well-founded fear of harm.

17.Therefore, the Board rejected the applicant’s claim and dismissed his appeal.

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

18.The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Decision.

19.In his affirmation in support of his application, the applicant said he is refouled to Vietnam, his life will be in danger as the local authorities will inflict more serious harm on him or even will torture him to death because he is opposing the government.

DISCUSSION

20.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).

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

22.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.”

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

24.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.

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

CONCLUSION

26.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 30^th day of May 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 30/5/2023 Hoang Hong Giang 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 30/5/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4967/16/9/346/V517 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1744/16 & RBCZ 9000426/17 (formerly RBCZ 11464/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)