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

HCAL 1712/2019

[2024] HKCFI 1549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1712 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 present 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 June 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, he appeared before the Court on 17 April 2024.

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, aged 49, is a Vietnamese. He entered Hong Kong illegally from Mainland China on 4 May 2015 and was arrested by the police on the same day. On 23 January 2017, the applicant was fined HK$1,000 for the offence of “Possession of dangerous drug”. On 28 September 2017, he was sentenced to imprisonment of 20 months for the offence of “Burglary”.

5.The applicant made a non-refoulement claim on 27 May 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had triad background, because of a debt owed to him. He also thought he could not return to Vietnam because he had been detained by the Vietnamese police before.

6.According to the applicant, in around May 1996 in Vietnam, he was intercepted by the police, who found some dangerous drugs on him. Although the applicant tried to explain that those drugs were handed to him by his friend, he was coerced under violence to admit the offence of trafficking dangerous drugs and was detained for two months. Eventually, the applicant was released without being charged, but he was warned not to mention this incident anymore, failing which something bad would happen to him.

7.In 2001, the applicant decided to run a grocery shop and he took out a loan from the creditor. He was able to make repayment on time until 2005 when there was a downfall of his business. Between 2005 and 2006, the creditor made multiple phone calls to the applicant, demanding loan repayment and threatening to beat him up if he failed to repay. In the meantime, 5-6 of the creditor’s underlings would come to the applicant’s home 3-4 times per month chasing for loan repayment. When the applicant told them that he was unable to pay, they would attack him with fists and iron bars. The applicant claimed that he did not suffer serious injuries from the assault, which he could recover in a month’s time by applying some ointment.

8.By the end of 2006, the applicant could no longer bear the continued harassment by the creditor and his underlings. He and his wife therefore decided to flee and escape after entrusting the care of their sons to the applicant’s parents. The applicant fled to Mong Cai while his wife went elsewhere. In Mong Cai, he worked as a miscellaneous worker to earn his living. In 2011, the applicant learnt from his wife’s younger brother that his wife returned home and was killed by the creditor’s underling, who knocked her down with a car. His wife’s younger brother had reported the matter to the police, but they refused to handle on the ground that this was only a traffic accident case.

9.Since then, the creditor’s underlings kept visiting the applicant’s home and making enquiries in relation to his whereabouts. In early 2015, he was told by his friends that the creditor’s underlings were looking for him in Mong Cai. The applicant was worried about his safety and thus decided to leave Vietnam. He entered China on 30 April 2015 and arrived in Shenzhen on 2 May 2015. Eventually he sneaked into Hong Kong on 4 May 2015.

10.The applicant last contacted his father in March 2017 and learnt that the creditor was still visiting his home to enquire his whereabouts. The applicant considered internal relocation not viable because the creditor had numerous underlings to locate him anywhere within the country. He was also of the view that he could not seek protection from the police because they were corrupt and he could not afford bribing them.

11.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 21 December 2017 (“the Director’s Decision”).

The Director’s Decision

12.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”).

13.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the past behaviour of the creditor indicated that he had no intention to seriously harm or kill the applicant. Meanwhile, the claimed murder of his wife by the creditor’s underling was based on multiple hearsay. As for the police, given the elapse of time and that the applicant had not been harmed since being released from his suspected drug trafficking offence in 1996, his fear of being re-arrested was not foreseeable [12] - [17].

14.Furthermore, (i) state protection would be available to him upon his return [18] - [20]; (ii) internal relocation would be viable [21] - [28] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29] - [34], Persecution risk [35] - [40] or Torture risk [41] - [45].

The Board’s Decision

15.The applicant appealed the Director’s Decision to the Board. On 25 March 2019, the Board conducted a hearing.

16.The Board considered that the creditor was merely using the threats and assaults to pressurise the applicant in repayment of the loan, with no intention to materialise his threats [39]. Meanwhile, the cause of death of his wife was based on double hearsay evidence [42]. As to the applicant’s fear to be detained by the police upon return, the Board found no basis for such claim given that he encountered no trouble from the police since his release for suspected drug trafficking in 1996 up to May 2015 when he decided to leave Vietnam [45]. In any event, it was merely his speculation that the police would not render any assistance to him [47] and that he could also consider internal relocation to avoid the claimed threats [56] - [58].

17.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [6] - [9], [37] - [48], BOR 2 and BOR 3 risk [10] - [13], [49] - [52] or Persecution risk [14] - [15], [53] - [55]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

18.The applicant has filed Form 86 dated 21 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.In the affirmation in support of his application, the applicant only stated his reasons of coming to Hong Kong, without raising any specific ground.

DISCUSSION

20.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).

21.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that he has no money to pay the creditor and if he returns to Vietnam, he will be killed.

22.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.”

23.For the reasons given, the Board found that the applicant will not be subjected to the applicable risks if he returns to Vietnam. I note that the applicant disagrees with the Board. However, there is no evidence from the applicant to challenge the Board’s findings.

24.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

25.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 25^th day of June 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