Tran Van Hung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1339/2019

[2024] HKCFI 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1339 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 17 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.

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 surrendered to the Immigration Department on 22 December 2014 and upon investigation, he admitted he illegally entered Hong Kong on 15 December 2014.  He made a non-refoulement claim subsequently on 22 December 2014 on the basis that he would be harmed or killed by a creditor (Mr. Bui Huu Hung) due to an outstanding loan.

5.According to the applicant, he took out a loan from Mr. Bui in September 2009 in the sum of one billion Vietnamese Dong (VND) in order to expand his aquatic farm business.  The monthly interest of the loan was around 1,000 VND per one million per day and no specific deadline was fixed for repayment.  Whilst the business fared well in the beginning, a storm occurred in mid-October 2010 making the business inoperable.  He was able to repay the loan by selling his house in the end of 2010.  On 10 April 2011, he borrowed money again from Mr. Bui in the sum of 500 million VND in an attempt to invest in real estate.  However, there was a government intervention and the piece of land was prohibited from being sold or anything to be constructed thereon.  In the circumstances, the applicant was unable to repay the 2nd loan and in May 2012, Mr. Bui sent debt collectors to his home.  They were willing to grant a six-month extension but he was still unable to repay Mr. Bui.  In early January 2013, Mr. Bui together with his relatives came again to the applicant’s home and beat him due to his inability to pay. There was no police report made as he believed Mr. Bui was rich enough to bribe the police.  In fear, he relocated to another district in Vietnam in February 2013 and again in April 2014.  There were no physical disturbances from Mr. Bui or his associates whilst the applicant was in hiding.   Details of his claim are set out at [6] of the Notice of Decision dated 31 July 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 or ill-treatment from Mr. Bui was indicative of a small future risk as there were only a total of two confrontations between Mr. Bui and the applicant, which indicated there was unlikely any real intention to seriously harm him, but rather it was to pressure him to repay [14.1]; (ii) there is unlikely to be any risk from Mr. Bui since the last incident was in 2014; and there is no indication Mr. Bui were intending to search and locate him whist in hiding [14.2] and [14.3]; (iv) state protection was available [15] – [19]; (v) internal relocation were available and reasonable [20] – [27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 15 March 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence. 

9.The Board recapped the applicant’s claim [22] – [24].  In essence, the Board held he was untruthful and found his case being vague and unbelievable in both written record and his oral evidence at the hearing [38].  In relation to the latter, he was also evasive to questions, such as when the Board questioned the inconsistency of his repayment of the loan interest against the timing of the alleged storm [31(a)]; or when he was asked to produce documentation (eg title deeds) of his alleged real estate investment [31(b)].  In any event, the threats from Mr. Bui whilst the applicant was in hiding was not supported by any concrete evidence but hearsay from his wife [31(h)]. 

10.Despite the above factual findings, the Board proceeded on the assumption the events were true and assess the relevant grounds of non-refoulement protection.  It found there was no involvement of state nor any state acquiescence, and based on credible and objective COI, reasonable state protection was available [44].  The Board also held the applicant would be able to relocate to other regions in Vietnam [60].

11.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

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

13.In his affirmation in support of his application, the applicant said he believes that if he is refouled to Vietnam, his life will be in danger as he is insolvent.

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.For those reasons in paragraphs 9 and 10, the Board dismissed the applicant’s claim and confirmed the Director’s Decision. The applicant has not raised any valid to challenge the Board’s Decision. There is no reason for the court to interfere with 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 11^th day of April 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