Hoang Manh Hung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1232/2019

[2023] HKCFI 2991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1232 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.

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 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, his application is dealt with on the papers.

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 as a visitor on 6 February 2015 and was permitted to stay until 13 February 2015.  He did not depart and had overstayed since 14 February 2015.  On 12 January 2016, he surrendered to the Immigration Department.  On the date of the 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 was involved in a car accident in late 2013, in which he damaged an expensive sedan and injured the passengers therein.  The sedan owner had been chasing the applicant for the repairing fee and the hospitalization expenses.  The applicant had to resort to the loan shark as his insurance payout was slow.  Initially, he was able to settle the monthly interest payment from late 2013 to January 2015.  Yet, since mid-2014, the creditor had been threatening the applicant and demanding him to settle the loan.  She constantly visited the applicant with some men and threatened to kill him and his family if the principal was not repaid.  They did not cause any physical harms to the applicant.  Out of fear, the applicant decided to flee to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 11 October 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 past events indicated that the applicant’s perceived fear of harm was groundless [14]; (ii) state protection would be available to him [15]; and (iii) internal relocation was also a viable option [16]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 4 April 2019, the Board conducted an oral hearing for his appeal.

9.The Board recapped the applicant’s claim, and reminded itself of the relevant legal principles [6]-[26].  In assessing the applicant’s credibility, the Board noted that the applicant was unable to produce any documentary evidence of the loan despite he said it was reduced into writing and he failed to give details of the loan [31].  It also noted that the applicant provided different name of the creditor [32].

10.Further, the Board considered the country of origin information (“COI”) [38]-[52].  It found that there was no evidence on the creditor’s influence; that the alleged loan amount was implausible; that while he was verbally threatened by the creditor he was never physically harmed; that the creditor had no intention to cause harm or kill him; that the events after the applicant’s departure from home were based on hearsay information; that the future risk of harm was small; that the ill-treatments failed to attain a minimum level of severity; that it was a private monetary dispute; that the lapse of time had diluted the range of the creditor to locate the applicant; and that there was no evidence of lack of state protection [61]-[91].  As a result, the applicant’s claim on Torture risk failed.  For the same reasons, the Board also rejected his claim on the remaining grounds.

11.Therefore, the applicant’s appeal was dismissed.

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

12.The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation and in support of his application, the applicant said if he returns to Vietnam, his life will be in danger as his creditor and his subordinates will inflict more serious harm on him or even kill him because he is unable to settle his debt.

DISCUSSION

14.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).

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

16.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.”

17.The Board had, for the reasons stated in paragraph 10 supra, dismissed his appeal.  There is no valid ground from the applicant to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 30^th day of November 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