Pham Luong Pho v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1197/2019

[2023] HKCFI 2616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1197 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
	onsideration 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 30 April 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 had previous been arrested and sentenced to imprisonment in Hong Kong.  He was deported back to Vietnam on 19 March 2009 after his release from prison.  He entered Hong Kong illegally again on 17 June 2015.  On 13 July 2015, he surrendered to the Immigration and lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by a money-lender, Ngo Van Dat, and his seven other friends whose names he could not recall because of the loan disputes.

5.In short, the applicant borrowed the money from Ngo and seven other friends for his aquatic products business.  Initially, he was able to repay the monthly interests.  By the beginning of 2012, his business collapsed due to unexpected change of weather.  Worse still, in around September 2012, the officials informed the applicant of the closure of his three ponds, which was the only source of income.  As a result, he was unable to settle the loans. Ngo and seven other friends started to chase for repayment.  They threatened the applicant and, on one occasion in October 2012, attacked the applicant. Unable to cope with the constant harassments, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 20 January 2017 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 [14]-[15]; (ii) state protection would be available to him [16]-[17]; and (iii) internal relocation was a viable option [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 22 February 2019, the Board conducted an oral hearing for his appeal, during which he answered questions [4].

9.Having considered the evidence, the Board found that there was no state involvement [7]-[9]; that the injuries sustained by the applicant failed to attain a minimum level of severity [10]-[13]; that internal relocation, according to the country of origin information (“COI”), was a viable option [14]-[18]; and that the COI also supported a finding of the availability of state protection [29].  Independently assessing the applicant’s claim, the Board also found that it was unreliable and rejected it.  Therefore, the applicant’s appeal was also dismissed.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant said if he returns to Vietnam, his life will be in danger as he will be harmed or killed by the creditor because he is insolvent.

DISCUSSION

12.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).

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

14.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.”

15.The Board, for the reasons given above, did not believe that the applicant came to Hong Kong for protection, that state protection would be available to him and internal relocation is an option open to him. There is no valid ground from the applicant to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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 31^st day of October 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