Luu Dinh Cong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1315/2019

[2024] HKCFI 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1315 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 9 May 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.

The applicant

3.The applicant is a national of Vietnam.  He entered Hong Kong illegally on 10 May 2012.  On 4 March 2014, he surrendered to the Immigration Department.  On the date of surrender, he lodged a non-refoulement claim on the basis of risk of harm from his creditor due to an outstanding debt. 

4.In short, in 2003, he borrowed a loan from the creditor for his gambling.  He was unable to repay either the interests or the principal.  One month later, the creditor demanded him to repay the monthly interests.  One day, the creditor and his followers assaulted the applicant for his default. From 2003 to 2006, nothing eventful happened except that the creditor had been chasing the repayments and he also damaged the applicant’s properties.  One day in 2007 or 2008, the creditor used a sword and glass bottle to cut the applicant.  While his family sold a piece of land to settle a part of the loan, the applicant was still unable to settle the full sum.  In 2009, the creditor threatened to beat his wife if he failed to repay the loan.  Later, in May 2010, the applicant went to Europe to avoid the creditor.  In January 2011, he returned to Vietnam.  However, in January to March 2012, the creditor found him again and threatened to kill him and his family if he didn’t settle the principal and the monthly interests.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 12 April 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the applicant’s claimed risk of harm was assessed to be low [12]; (ii) state protection would be available to him [13]-[17]; and (iii) internal relocation was a viable option [18]-[23].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 14 February 2019, the Board conducted an oral hearing for his appeal, during which he amended certain parts of his claim [30].

8.The Board recapped the applicant’s claim and his subsequent amendments [2]-[12];[31]-[44].  Having considered the evidence, the Board found that the crux of the applicant’s claim, i.e., the risk of harm from the moneylender due to an outstanding debt, was unreliable [45]-[49].  The Board was not satisfied with the applicant’s evidence in that he did not submit any objective evidence on the debt and he could not recall the details of his indebtedness at the hearing [36].  He did not submit any medical evidence to support his alleged injuries and he made a mistake as to which arm was injured and was unable to give any explanation for the mistake [37].  Without objective or reliable evidence for the assaults, the Board did not accept that he had been assaulted by the lender [39].

9.In assessing the individual grounds, the Board found that the gravity of the ill-treatment was low [55]; his claimed fear of harm was not well-founded [56]-[60]; state protection was available to him [61]-[70]; there was no physical or mental sufferings that amounted to the level of severity as required under the Torture risk and there was no state involvement [73]-[82]; and internal relocation was a viable option [92]-[101].

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 16 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant raised the grounds.

(1)  The Board failed to consider his evidence carefully.  It relied upon the country of origin information (“COI”), cherry picking the information that supports the Board’s Decision.  The Board failed to take into account the fact that he was injured by the loan shark and that he and his family may be killed.

(2)  The Board had underestimated the risk that he would face if he returns to Vietnam. The fact that the prime minister of Vietnam had resigned because of corruption of the government officials show the seriousness of corruption in Vietnam.

(3)  The Board was in error not to have medical report on his injuries.  It held against the applicant for not having medical report to prove his injuries. This is unfair to him.

(4)  The Board did not make a difference between Persecution risk and torture risk.  It applied its subjective decision to say that the applicant was an unreliable witness.  The Board applied its biased views on all the applicable risks.

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.As to the grounds in support of his application, the applicant complains that it was unreasonable for the Board not to accept his evidence.  The Board had given its reasons that absent objective evidence as proof, it did not accept the applicant’s evidence that the lender had assaulted him.  This is a matter for the Board in the fact-finding exercise.  The Board has the discretion to make reference to or rely on such COI as it thinks fit.  The burden of proof of his injuries is on the applicant.  The Board does not have the burden to obtain medical report on the applicant on its own motion.  The fact that the prime minister of Vietnam had resigned because of corruption shows that the Vietnamese government has the intention to combat corruption.

17.The other complaints are his personal views on the Board, which are not valid reasons to challenge the Board’s Decision.

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 7^th day of February 2024

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