Tran Van Tu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 289/2023

[2023] HKCFI 1497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 289 of 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	cconsideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 June 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  The application filed on 24 February 2023 is late[1]. This issue will be dealt with below.

2.The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the applicant appeared before the Court on 24 April 2023.

The applicant

3.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 17 March 2020 and was arrested by the police on 24 March 2020.  On 29 June 2020, he lodged a non-refoulement claim on the basis of a risk of harm from his creditor. 

4.In brevity, the applicant took out a loan from Nguyen for his prawn business in April 2018 and August 2018 respectively.  Initially, he was able to repay the monthly interests.  However, by the end of 2019, he defaulted the repayments due to the deteriorated business.  In January 2020, Nguyen started his debt collection.  He assaulted the applicant with iron stick.  After the assault, the applicant escaped to his friend’s house.  In February 2020, Nguyen visited his house again and threatened the applicant’s wife that if he did not settle the loan, his limbs would be cut off.  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 8 February 2021 by the Director (the “Director’s Decision”).    

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed his claim.  In elaboration, the Director found that (i) the claimed risk of harm was assessed to be low [10]-[14]; (ii) state protection would be available to him [15]-[21]; and (iii) internal relocation was a viable option [22]-[27].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 13 May 2021, the Board conducted an oral hearing for his appeal.  

8.At the outset, the Board considered the country of origin information (“COI”) in relation to the loan sharks and illegal debt collecting activities, as well as the incorporation of business in Vietnam [10]-[21].  It proceeded to consider the applicant’s claim and tested the material aspects with inherent plausibility and the relevant COI.  After evaluating the evidence, the Board made the following findings. 

9.The Board first noted that the applicant was unable to state how much he paid for the interest [38]; that his evidence on which type of business he operated was confusing [39]-[45]; that his evidence on how to operate the business was implausible [46]-[49]; that it was implausible for the applicant with limited relevant business background to obtain a loan of the said sum [50]-[57]; that the claimed interest rate and the use of loan were inconsistent with the COI [58]-[62]; that the applicant had no basic knowledge about how to run a business in Vietnam [63]-[65]; that the applicant’s claimed injuries did not attain a minimum level of severity [66]; that the applicant’s failure to seek protection in China undermined his credibility [67]-[69]; that the applicant never reported the alleged incidents to the police [70]-[72]; that the applicant was inconsistent as to how he attempted to settle the loan [73]-[74]; and that the applicant’s evidence about the licensing of his business contradicted with the aquaculture legislation in Vietnam [75]-[77].

10.In light of the above findings, the Board refused to attach any credence in the applicant’s claim [78]-[83].  In any event, it was a private monetary dispute without state involvement and state protection and internal relocation were both available to the applicant [84]-[90]; [116]-[126].

11.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

12.The applicant has filed Form 86 on 24 February 2023 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant simply repeated the reasons he came to Hong Kong without specifying any ground.

DISCUSSION

14.As mentioned in paragraph 1, the applicant’s application is late.  The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted.  Also, the Court should not grant extension for a hopeless application.  See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19.  The deadline for him to file Form 86 is 25 September 2021.  The delay is about one year and five months.  I shall now consider the merits of the applicant’s case.

15.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).

16.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that he disagrees with the Board’s Decision.  He further said that he really wants to return to Vietnam to see his wife and children.  However, it is unsafe for him to do so.

17.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.”

18.The Board has, for the reasons given above, rejected the applicant’s evidence.  The applicant has not raised any valid reason to challenge the Board’s Decision.

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

CONCLUSION

20.I refuse to extend time for the applicant to apply for leave 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