Nguyen Van Trang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 949/2019

[2023] HKCFI 1633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 949 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:

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Second 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 entered Hong Kong illegally on 5 June 2016.  On the next day, he surrendered to the Immigration Department and lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditors.

5.According to the applicant, in 2006, he intended to build a house and rent it out for profit.  He borrowed money from the bank, as well as his creditors Cuong and Hung.  Initially, he was able to repay the monthly interest. However, since June 2008, he had been defaulting the payments.  Since mid-2013, he had been harassed and assaulted on one occasion by Cuong and Hung.  In September 2014, one of the followers of Cuong and Hung rented a room in the applicant’s house.  Yet, it turned out that he left the drug and dangerous weapons in the applicant’s house, which led to the applicant’s arrest and subsequent imprisonment.  He left prison in October 2015.  Out of fear, in May 2016, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out in paragraph 8 of the Notice of Decision dated 28 October 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 the level of risk of harm was assessed to be low.  In elaboration, the Director found that (i) the applicant was never severely harmed, either physically or mentally, from the creditors [13(1)]; (ii) the creditors had shown no intention to cause harm or even kill him [13(2);13(4)]; (iii) there was no evidence that the creditors could locate him everywhere [13(3)]; (iv) there was no evidence of state involvement [13(4)]; (v) state protection would be available to him [14]-[17]; and (vi) internal relocation was a viable option [18]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 28 September 2018, the Board conducted an oral hearing for his appeal, during which the applicant added, inter alia, that he did not comply with the requirement from the Vietnamese authority to report periodically and thus feared that he would receive further sentence if refouled [23].

9.Having considered the evidence, the Board made the following findings. First, on the applicant’s own evidence, the creditors’ intention was to chase for repayments instead of killing him [46].  Secondly, the applicant’s evidence was contradictory and full of errors [47]-[48].  Thirdly, his evidence about his wife’s departure was constantly changing [49].  Fourthly, the applicant’s light sentence defeated his claimed false cases of possessing dangerous drugs and weapons which normally attracted heavier sentence [50].  Fifthly, there was no evidence that the applicant would not receive fair trial upon refoulement [51].  Meanwhile, this was entirely a monetary dispute without state involvement [52].  Further, the applicant’s alleged injuries failed to attain a minimum level of severity [56].  In any event, internal relocation was a viable option for the applicant [62]-[66].

10.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 that if he returns to Vietnam, his creditors will inflict more serious harm or even kill him because he is insolvent and that the authority will arrest him since the creditor did sue him.

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 had, for the reasons given, rejected the applicant’s evidence on the facts of his case. 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 23^rd 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