Luu Kim Nguyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 859/2019

[2023] HKCFI 1510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 859 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 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 14 November 2014 and surrendered himself to the Immigration Department on 17 November 2014.  On the date 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 his creditor, Vu Lam, and be ill-treated in prison.

5.In short, the applicant borrowed a loan from Lam for his business of electronic appliances.  In around 2010, his business failed and he defaulted the payments.  In January 2010, Lam, together with two men with wooden sticks, visited his house, threatening to kill him if he was unable to settle the loan.  The applicant asked for an extension, which was granted by Lam without being harmed.  Yet, the applicant escaped as he was unable to repay the loan. In addition, the applicant claimed that he had been sneaking out of Vietnam illegally three times in 1989, 1993 and 1996 respectively.  He was sentenced to one-year imprisonment from 1998 to 1999 with an offence of treason by the Vietnamese government after he was deported back the third time.  During his imprisonment, he claimed to be tortured by the prison officers because he had no money to bribe them.  As a result, the applicant decided to seek protection in Hong Kong.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 7 August 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 was assessed to be low.  In elaboration, the Director found that (i) the past ill-treatments indicated an unlikelihood of future risk of harm.  Meanwhile, there was no evidence supporting his claim that he would be imprisoned or he would be ill-treated in prison [13]; (ii) state protection would be available to him [14]-[17]; and (iii) internal relocation was a viable option [18]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 28 December 2018, the Board conducted an oral hearing for his appeal, during which he testified [19].

9.The Board considered the applicant’s evidence and the country of origin information (“COI”) [19]-[27].  It proceeded to assess the applicant’s credibility.  It found major discrepancies in his claim of outstanding debt. For example, the applicant provided different figures of the loan and the interests of the loan [36]-[37].  He also provided different accounts of Lam’s visit and the purpose of the loan [38]-[39].  He also contradicted himself in the length of time he stayed in another village [40].  It was also unreasonable that the applicant, as a businessman, would not protect his own interest by asking for receipts of the interest payment and that Lam, as a seasoned loan shark, would not press the applicant to transfer his house, which was a collateral to the loan, as a settlement of the loan [44]-[45].  Without satisfactory explanations, the Board casted doubt on the applicant’s claim.

10.In assessing the individual grounds, the Board found that it was a private dispute without state involvement.  Especially, the applicant was able to secure a valid passport and depart Vietnam in 2014 despite his previous conviction.  He was not adversely targeted by the State [50]-[51]. Furthermore, state protection and internal relocation were both available to the applicant [58]-[65].

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 28 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 repeated his reasons for coming to Hong Kong.

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 applicant has not been able to raise any valid reason 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 13^th day of June 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