Do Hai Nam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 982/2019

[2023] HKCFI 1984

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 982 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 11 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 (“RHC”), I shall 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 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 15 July 2014. On 22 July 2014, he surrendered to the Immigration Department. 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 the Vietnamese police.

5.In brevity, the applicant claimed that his family had a land, which was the main source of income for his family. However, in January 2014, the chairman of Quang Thanh Commune informed them of VISIP Enterprise’s intention to purchase their land for industrial use. Yet, the compensation was insufficient. As a result, together with the fellow villagers, the applicant protested against the local authority which permitted VISIP’s purchase of the village land. Amidst the protest, the applicant was attacked by the police and fell unconscious. Thereafter, in mi-April 2014, the applicant received two summonses from the chief police officer. Believed that these two summonses were used as an excuse to take him to the police station so that the police would harm or even kill him because of the protest, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 28 February 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. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[20]; (ii) state protection would be available to him [21]-[24]; and (iii) internal relocation was a viable option [25]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 January 2019, the Board conducted an oral hearing for his appeal, during which he testified.

9.The Board recapped the applicant’s claim and his personal background. It further clarified material aspects of his claim with him [54]-[83]. Having considered all the evidence, the Board found that the country of origin information (“COI”) supported the applicant’s claim on the dispute in relation to the acquisition of their land [88]-[92]. It also accepted that the applicant and his parents were not satisfied with the compensation and that he had participated in a protest [93]. In relation to the two summonses, the Board accepted the issuance of them but found that they were simply for the police to summon the applicant to enquire about matters on the protest. They were not used, as claimed by the applicant, as an excuse to harm or kill the applicant [94]. It found that the applicant’s evidence on the disappearance of his friends was vague and lacked details [95]. Meanwhile, it noted that the applicant’s parents, the owners of the land, were never targeted [96]. Further, the Board was not satisfied that the police inquiry about his location was to harm or kill him. Rather, they were simply performing their duties [97]. In any event, the Board noted that, on the applicant’s own evidence, the land developer had already acquired their land and his family moved away. It therefore indicated that any adverse interests against the applicant due to the land were dissipated [98]-[99]. If the applicant’s family still felt grieved for the insufficient compensation, they could pursue legal remedies [100]. The Board also rejected the applicant’s claim on the involvement of triad members and considered that his ability to depart Vietnam without problems and late in lodging the non-refoulement claim undermined his credibility [102]-[103].

10.For the aforesaid findings, 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 10 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said if he is refouled to Vietnam, he life will be in danger as the authority will inflict more serious torture or harm which will cause him to lose his life.

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 assessed his evidence and accepted the events he had told the Board. However, having consulted the COI, the Board did not accept his allegations against the police or the developer, who had acquired the land in any event. The grounds set out in paragraph 12, supra are not valid 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.Therefore, I refuse to grant to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 8^th day of August 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