Nguyen Tien Luat v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1130/2019

[2023] HKCFI 2101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1130 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 18 April 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 15 November 2015 and surrendered to the Immigration Department on 17 November 2015. 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.

5.In short, the applicant borrowed money from his creditor for his poultry business in 2013. Initially, he was able to repay the monthly interest. Till the beginning of 2014, he started to default the payments as his business collapsed. From March 2014, the creditor began to chase for repayment. In the first visit, the creditor did not hurt the applicant and also extended the deadline for repayment. In June or July 2014, around five men visited the applicant, claiming to collect the debt for the creditor. While the applicant begged for another extension, the men assaulted him with wooden stick and knife. They threatened to kill the applicant if he failed to settle the loan within a year. Later on, the creditor and his followers visited the applicant three times, on the last occasion, they assaulted the applicant again. Out of fear, the applicant fled to other villages before coming to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 25 January 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) it was unlikely that there was a future risk of harm if the applicant was refouled [12]; (ii) state protection would be available to him [13]-[20]; and (iii) internal relocation was a viable option [21]-[27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 5 December 2018, the Board conducted an oral hearing for his appeal and heard his oral testimonies [26]-[34].

9.The Board considered the country of origin information (“COI”) [62]-[79]. It also considered the applicant’s evidence and found that his credibility was in doubt [81]. For example, it found that the applicant’s behavior was inconsistent with someone who feared of harm and that he omitted several matters in his non-refoulement claim. The Board thus concluded that the applicant’s evidence was vague, unreasonable and unreliable [82]. In assessing the individual grounds, the Board found that the applicant was not adversely targeted by the Vietnamese authorities [85]; that he did not sustain any serious injury which would fulfil the criteria [88]; it was only a private monetary dispute [91]; and that it was not unduly harsh for him to relocate to other areas [95]-[96].

10.For the aforesaid 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 29 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 reiterated his story of why he came to Hong Kong without setting out any specific ground.

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 did not accept his evidence and found that state protection and alternative internal relocation are available to him. There is no valid reason 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 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