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

HCAL 3059/2019

[2024] HKCFI 1207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3059 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 2 September 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 asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing date was fixed on 31 January 2024 for him to appear before the Court. However, he was absent without prior to the Court. I shall deal with his application on paper.

The applicant

3.The applicant, aged 41, is a Vietnamese. He entered Hong Kong illegally on 11 May 2016 and was arrested by the police on 22 May 2016. He lodged a non-refoulement claim on 15 June 2016 and was released on recognizance on 6 July 2016.

4.According to the applicant, he decided to set up an internet bar in January 2015 and borrowed money from a loan shark Hung. In mid-2015, an electrical shock in the bar led to a fire, which damaged all the furniture and facilities inside. As a result, the applicant had to cease business and hence unable to repay the loan.

5.Due to the default in repayment by the applicant, Hung’s men assaulted him and his wife. They even threatened him that if he failed to settle the loan in two weeks, they would cut off his ears and hands. The case was reported to the police but there was no follow up action. Subsequently, the applicant fled to Ho Chi Minh City and stayed at his friend’s place for two to three months. As the applicant wanted to sort out the loan, he returned to his hometown in January 2016 and surrendered his land to Hung. However, Hung told him that the proceeds for the sale of the land could not cover the outstanding loan and threatened to kill him if he failed to repay the balance. After three months of hiding in various places within his hometown, the applicant decided to flee to Hong Kong out of fear and desperation.

6.The applicant was of the view that the police would not render him help as Hung’s son was a police officer and Hung’s family was powerful with good connection to the triad. He also thought internal relocation not viable given the wide network of the triad members.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 April 2017 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment from Hung is indicative of low future risk of harm upon his return to Vietnam [11]-[13]; (ii) state protection will be available to him upon his return [14]-[16]; (iii) internal relocation is viable [17]-[21] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[32] and Torture risk [33]-[37].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 10 May 2019, for which the applicant failed to attend. As the Board was satisfied that the Notice of Hearing had been duly served on the applicant, it decided to determine the appeal in his absence.

11.The Board found that the applicant’s case failed to meet any of the requirement under Torture risk [23]-[25], [36]-[49], [58], BOR 2 and BOR 3 risk [59]-[66] or Persecution risk [67]-[71]. In any event, state protection and internal relocation were also available to the applicant [50]-[57], [72]-[76].

12.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

13.The applicant has filed Form 86 on 16 October 2019 for leave to apply for judicial review of the Board’s Decision.

14.In support of his application, the applicant filed an affirmation, in which he set out his reasons as follows:

(1)  Procedural impropriety. The Board made its decision when he was absent and the Board did not wait until he had given his reasons This is not fair under the law.

(2)  Subjective views. The Board was in error to hold that he did not have sufficient evidence to prove the torture risk, BOR 3 risk and Persecution risk, given the facts that the creditor Hung and his subordinates had hit him with fists and kicks and they threatened to cut off his ears and hands. They said they would kill him even if he surrendered his land for the loan as the land’s value did not cover the loan. The applicant’s wife was beaten up by them too. The matter was reported and the police did not take action. The Board was in error to hold that such acts are not serious enough for the risks. The Board did not state by what standard it made the assessment. If the Board applied the western standard, it failed to make the proper assessment. Otherwise, it was too subjective in its assessment.

(3)  The Board was not aware of the real situation of Vietnam. The Board failed to take into consideration of the corruption in Vietnam. The applicant cited a paragraph of Gan Business Anti-Corruption Portal and Thanh Nien News:

“There is a high risk of corruption in the Vietnamese judiciary as court functions are restricted by political influence, a lack of transparency and a weak legal system. Bribes and regular payments in exchange for judicial favourable decisions are perceived to be common.

Corruption is widespread within the ranks of Vietnamese police and thus carries a high risk for business.

Thirty percent of respondents in a Transparency International Survey said that they had paid bribes to one or more of eight public services in Vietnam and the police remains the most corrupt institution in the country.”

The applicant further cited a piece of news that the prime minister of Vietnam had resigned, saying that it was because of corruption in Vietnam.

The applicant finally said that the Board failed to follow the guideline 30 of Chiver (Asylum: Discrimination; Employment; Persecution (Romania) 1994), taking into consideration of all the circumstances to determine his case.

DISCUSSION

15.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. The applicant was also absent before this Court. There is no explanation for his absence.

17.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.”

18.I shall now deal with the applicant’s grounds in paragraph 14.

19.Ground (1) fails because the Board has to follow the law for the procedure. It is unreasonable to demand the Board to wait indefinitely for the applicant’s reply. The applicant had not given his explanation for his absence at the hearing. Assuming that he had notice of the hearing, he abandoned his right to be heard and to make submissions at the hearing. He cannot complaint that the Board did not consider his argument if he was absent without good reasons under the law. Up till now, he has not given his explanation for his absence at the hearing.

20.For ground (2), the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743, CJ Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Tang PJ and Lord Walker of Gestingthorpe NPJ held:

“173. …to meet the “minimum level of severity”, it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment.”

The Board had to follow the above guidelines to assess the applicant’s case. The Board had made its assessment accordingly. The Court should not interfere with its assessment.

21.For ground (3), the Board had taken on board those COI that are in the applicant’s favour and on the other hand, it had considered other countervailing factors as well. See paragraphs 50-56 of the Board’s Decision. In paragraph 57, the Board said:

“Under such circumstances, I find that there is reasonable State protection available to the Appellant upon his return to Vietnam.”

22.Those reasons in ground (3) are not strong because the Board had obviously taken them into consideration before it reached its decision in paragraph 57 of the Board’s Decision.

23.All the grounds put forth by the applicant fail.

24.It is clear that the Board had taken into consideration of the merits of the case by considering the materials relied on by the Immigration Department and materials obtained by the Board. See paragraph 52 of the Board’s Decision.

25.The applicant fails to show that there is any realist prospect of success in his intended application for leave for judicial review the Board’s Decision.

26.There is no reason that the Court should interfere with the Board’s finding of the facts. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

27.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 14^th day of May 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