Nguyen Xuan Khuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1340/2019

[2024] HKCFI 561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1340 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 16 May 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”), 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 August 2016 and surrendered to the Immigration Department on 17 August 2016.  On 17 August 2016 and 31 August 2016 respectively, 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 Toan due to an outstanding loan. 

4.In short, the applicant took out the loan to expand his seafood farming business in May 2015.  Up to April or May 2016, he did not repay any monthly interest as the creditor agreed that he could repay the principal and the interests after his farm had profits.  However, a typhoon destroyed his business.  Since mid-May 2016, the creditor started chasing for repayments. They visited the applicant four times.  During one of the incidents, they assaulted the applicant.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 20 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:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   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”);

(3)   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

(4)   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 low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[13]; (ii) state protection would be available to him [14]-[18]; and (iii) internal relocation was a viable option [19]-[24].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 21 February 2019, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries [45]-[46]. 

8.The Board recapped the applicant’s claim [9]-[21] and the country of origin information [22]-[30].  Having considered the evidence, the Board made the following findings.  It found that the applicant failed to adduce any documentary evidence for the loan [48]; that his claim of the sum of the loan was questionable [49]; that it was implausible that the applicant never paid the monthly interest [50]; that his evidence on whether he gave security for the loan was inconsistent [51]; that it was unreasonable that he did not have insurance for his business [52]; that there was no evidence that his creditor was immune to law [53]; that reasonable state protection was available in Vietnam [54]; and that his delay in seeking protection undermined his credibility [55]; that internal relocation was a viable option for him [56]-[57].  The Board concluded that the applicant’s credibility was questionable and unreliable [58]-[59]:

“59. … I was therefore unable to attach any weight to his evidence that he had borrowed 500 million VND from a moneylender in his home village, and that he had been assaulted and threatened by a moneylender when he failed to repay the loan with interest. On totality of the evidence, I was not persuaded that he had borrowed money and had been threatened by a moneylender in his home village, or otherwise ill-treated, in Vietnam.”

9.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

10.The applicant has filed Form 86 dated 20 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the grounds below in support of his application.

(1)   The Board has underestimated his risks.  He had been beaten to being unconscious and had to receive first aid for his life.  He considers that the assault has met the requirement under BOR 3 risk.  He thinks that his creditor may kill him if he returns to Vietnam.  He disagrees with the Board’s view that the assault did not meet the requirements of BOR 3 risk.  He considers that the Board was trying to defend the creditor.

(2)   The Board had selectively accepted the country of origin information (“COI”) evidence.  The Board had relied upon the China Global Times Outline News, which says that the Vietnamese government has the determination to combat corruption.  However, the Board had lost sight of the news on 23 June 2006, which reported that prime minister Poon Wen Hoi （潘文凱）had resigned because he took the responsibility of corruptions of senior government officials, which shows the seriousness of corruptions in Vietnam.

(3)   The Board was biased.  The Board had relied upon the difference in his evidence in relation to his marine business to discredit his evidence without taking into consideration of the evidence as a whole.  It had applied this subjective approach to all the applicable risks.

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, rejected the applicant’s evidence and found that state protection and internal relocation are available to him.

16.As to his grounds of application, Ground (1) is a matter of judgment by reference to the degree of torturing, pain and suffering^[1].  The Board was entitled to form its views on this issue.  Ground (2) is his opinions without evidence to support.  The Board had the discretion to make reference to the relevant COI.  It had considered both sides of this issue.  The fact that the prime minister had resigned because of the seriousness of corruption of government officials shows that the prime minister took responsibility and he surrender his power to another prime minister who may be able to combat corruption.  This shows the Vietnamese government’s determination to combat corruption.  Ground (3) is also the applicant’s personal opinions without any evidence in support.  Those grounds are not valid reasons to challenge the Board’s Decision.  There is no reason for the Court to interfere with the Board’s Decision.

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 22^nd 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