Case Document

100%Judiciary

HCAL 950/2019

[2023] HKCFI 1555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 950 of 2019

BETWEEN
	Dinh Xuan Tung	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 dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 last entered Hong Kong on 16 December 2014 and surrendered to the Immigration Department on the next day. 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 Hoang due to a loan dispute.

5.In short, the applicant borrowed a sum from Hoang to start his fish breeding business in October 2013. However, his business collapsed in February 2014. He defaulted the loan payments. From the applicant’s recollections, Hoang had chased him for repayments on multiple occasions, during which he was verbally threatened once and assaulted in four instances. Despite the applicant sold his valuable items, he still could not settle the loan. Out of fear, he decided to flee to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 28 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 his claimed risk of harm was groundless. In elaboration, the Director found that (i) Hoang’s conducts did not indicate an intention to harm or even kill the applicant. Meanwhile, there was no evidence that Hoang was influential enough to locate the applicant elsewhere in Vietnam [15]-[18]; (ii) state protection would be available to him [19]-[24]; and (iii) internal relocation was a viable option [25]-[30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 9 January 2019, the Board conducted an oral hearing for his appeal, during which he was legally represented. The applicant and his duty lawyer submitted supplementary materials in relation to the violent acts by the loan sharks in Vietnam. The Board found that these materials were merely general information that did not assist the applicant’s case [52]-[55].

9.Having considered the evidence, the Board did not accept that the applicant would face a risk of harm if refouled [56]. In particular, the Board rejected the duty lawyer’s submissions that the applicant’s appeal should be allowed on humanitarian grounds [60]. It also rejected the applicant’s claim as it was untruthful. The Board refused to accept that the applicant ran a fish breeding business. It also rejected the existence of a loan agreement [63]-[72]. Further, the applicant’s evidence on the assaults were inconsistent and lacked details [73]-[74]. Also, the Board was not persuaded that the applicant had sustained severe injuries; that Hoang intended to kill him; that the authorities would not assist him; and that his life was in danger [75]-[85]. In any event, state protection and internal relocation were both viable options [86]-[95].

10.In assessing the individual grounds, the Board also found that the loan dispute was private in nature without state involvement [106]. 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

11.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said, if refouled, he would be harmed or killed by the creditor because he was unable to repay his debt.

DISCUSSION

13.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).

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

15.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.”

16.The Board, for the reasons given above, had rejected the applicant’s evidence on the facts. There is no valid ground from the applicant to challenge the Board’s Decision.

17.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.

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

CONCLUSION

19.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 15^th day of June 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 15/6/2023 Dinh Xuan Tung 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 15/6/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5781/17/1/65/V827 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2607/16 (Formerly RBCZ 10043/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)