Nguyen Duc Thinh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1689/2019

[2024] HKCFI 1709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1689 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 oral submissions by the Applicant 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 11 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.  He appeared before the Court on 22 May 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 41, is a Vietnamese.  He entered Hong Kong illegally on 14 April 2011 and was arrested by the police on 19 May 2011.  On 23 May 2011, the applicant was sentenced to imprisonment of 15 months after being convicted to the charges of (i) using a forged identity card; (ii) using a false instrument and (iii) illegally remaining in Hong Kong.  The applicant made a torture claim on 27 September 2011.  The claim was made on the basis that, if refouled, he would be harmed or even killed by the Vietnamese government because he was falsely accused of being a spy.  Upon the commencement of the unified screening mechanism, his torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

5.According to the applicant, he worked as a freelance interpreter between 2002 and 2007 in Ho Chi Minh City and knew mandarin.  In April 2011, the applicant intended to go to Australia, but was tricked by the agent into coming to Hong Kong.  In September 2011, while he was serving his sentence in Hong Kong, he received a letter from his uncle, who told him that his father was arrested by people claiming to be Vietnamese police.  Subsequently, his house was sealed off and was burnt down.  His uncle told the applicant that all these happened because he was suspected of being a spy for China.  A death sentence was even imposed on him in his absence.  The applicant suspected that he might have become a scapegoat for the real spy because he had once been an interpreter and knew mandarin.  

6.On 15 February 2012, the applicant received a letter from an unnamed person informing him that his uncle had passed away suddenly on 5 February 2012. The applicant suspected that his uncle was killed by the Vietnamese government because of his connection with him.  After the applicant’s release from prison in 2012, he called his friends in Vietnam, who informed him that he was not the only one targeted by the government as many citizens in his hometown were arrested and beaten up.  Meanwhile, the applicant also learnt that his mother was detained, but was subsequently released together with his father in around 2012-2013.

7.In June 2013, the applicant’s brother called him and told him that he was in hiding as he was also wanted by the Vietnamese authorities.  In late 2013, the applicant’s sister came to visit him in Hong Kong.  She informed the applicant that many people were seeking for his whereabouts.  The applicant’s sister also brought along a letter from his mother.  In the said letter, his mother told him that she was being interrogated by a secret agent continuously and she advised him not to return to Vietnam. 

8.The applicant did not dare to contact his family in Vietnam as he feared that the government could track the phone lines and harm his family.  The applicant was of the view that he could not seek protection from the police because they were corrupted and he did not believe in them.  He also considered internal relocation not viable because he was accused of spying and he feared that he would be killed. 

9.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 14 February 2017 (“the Director’s Decision”).

The Director’s Decision

10.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

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

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the absence or low intensity and frequency of past ill-treatment by the Vietnamese government indicated a small future risk of harm upon his return to Vietnam.  In any event, the perceived harm was merely the applicant’s own speculation and based on hearsay [16]-[19].

12.Furthermore, (i) state protection would be available to him upon his return [20]-[23]; (ii) internal relocation would be viable [24]-[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]-[39] or Torture risk [40]-[41].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board.  On 25 April 2018 and 4 April 2019, the Board conducted oral hearings.  The applicant was represented by a duty lawyer at the hearing.  A government counsel also represented the Director.

14.The applicant claimed that in between the two hearings, on 22 October 2018, he received a phone call from his sister, telling him that his father was arrested for the second time at the beginning of 2018 when he intended to send documents relevant to the applicant’s spying conviction to him. The applicant’s father was then beaten up by the police, causing him to suffer from fractures to his face, shoulder and waist.  He was admitted to hospital as a result, but subsequently disappeared [35].

15.In his submission, the applicant claimed that in addition to Torture risk, BOR 2 and BOR 3 risk or Persecution risk, he also faced a real risk of interference with his right to family under Article 14 of Section 8 of HKBOR (“BOR 14”).  He asserted that he was married on 21 September 2015 and his wife gave birth to their son on 28 January 2016, so that his refoulement to Vietnam would cause hardship to the family [42]-[43].

16.Furthermore, the applicant claimed that the Director should obtain relevant documents for him in accordance with the high standards of fairness demanded for the processing of non-refoulement claims.  They should also obtain assurances from Vietnamese authorities that death penalty would not be carried out and a retrial would be held [50]-[51].

17.The Board considered it inappropriate for the Director to make enquiries with the Vietnamese authorities in relation to the applicant’s non-refoulement claim.  In any event, they saw no reason why the applicant, who was legally represented, could not obtain the relevant documents himself [64]-[65].

18.Regarding the applicant’s claim under BOR 14, the Board found that section 11 of HKBOR expressly excludes persons who do not have a right to enter and remain in Hong Kong to rely on the rights under HKBOR unless it is an absolute and non-derogable right according to the case Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.  As the right under BOR 14 is not absolute and non-derogable, the applicant could not rely it as a separate ground for non-refoulement protection.  The fact that the applicant’s wife and child having right of residence in Hong Kong would not make a difference [84]-[92].

19.Although the Board in general accepted the background of the applicant and his family, as well as the burning down of the applicant’s home [94]-[96], they did not accept that the applicant and his family members were targeted by the Vietnamese authorities [97].  Rather, they were of the view that the applicant was not a witness of truth and that he had fabricated his claims [102]. 

20.The Board did not accept that applicant’s language abilities reached the level that he would be engaged as an interpreter, given that there existed a sizeable population in Ho Chi Minh City that possessed better abilities in Chinese than the applicant [107].  The Board also disbelieved that the applicant intended to go to Australia, but was tricked by an agent into coming to Hong Kong given the speed with which he obtained the forged Hong Kong Identity Card and he had no travel visa to Australia [108]-[109].

21.The Board did not accept that a conviction was entered against the applicant in his absence and that he was sentenced to death.  They also rejected his claim that his parents were detained and tortured [110].  The Board considered it implausible that the authorities would detain and ask his parents the same questions for a year [111] and that his uncle would learnt about what was said to his father when he was arrested because his uncle was not at the scene [113].  The Board also noted that the applicant gave inconsistent evidence in relation to (i) the date of his uncle’s death [114]; (ii) the second detention of his father [116]-[118]; (iii) the content of the applicant’s conversation with his sister when she visited Hong Kong [120]-[123]; (iv) whether he had discussed his father’s detention with him over the phone [124]-[126]; (v) whether he had asked anyone for supporting documents regarding his conviction and death sentence [127]-[128] and (vi) the number of times his brother had written to him [129]-[130].

22.The Board considered that the applicant was not of any adverse interest to the Vietnamese authorities, so that he would not be at risk of being harmed as claimed [133]-[134].  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [67]-[83], [137]-[140].

23.The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

24.The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.

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

1.  Selective acceptance of evidence: In paragraphs 93-96, the Board accepted his family background.  However, in paragraph 97, it unreasonably rejected his evidence that the Vietnamese government falsely accused him of being a spy.  This means the Board had selectively accepted the evidence without stating what standard it was adopting.  This may be because he was sentenced to imprisonment, a factor, which the Board had taken to discount his credibility.  The Board was therefore unable to state its reasons.

2.  Failing to consider the evidence adduced by him.  The Board did not take into consideration of the letters his uncle and his friend sent to him, telling him that it is dangerous for him to return to Vietnam.  On the one hand, the Board said that it would not reject hearsay evidence.  On the other hand, it did not seriously consider his documentary evidence.  In paragraph 102, it said that he was not a witness of truth.  The Board should not turn its blind eye to the evidence he adduced.

3.  The Board did not consider seriously BOR 2 and BOR 3 risks and their applicability to his case.

4.  The Board assessed the applicable risks not applicable to him, which means that he will not be subjected to the applicable risks if he returns to Vietnam.  The assessment seemed to be based on the Board not believing his evidence, such assessment was prejudicial, subjective and without legal basis, particularly in relation to torture and persecution, which are prevalent in Vietnam.  The Board did not even mention this in the Board’s Decision.

DISCUSSION

26.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).

27.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 he was free to speak before the Board.  He considered the Board was wrong because the Board rejected his evidence.  He further said that he could not find his brother and his parents and he has a wife and two children in Hong Kong.

28.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.”

29.I shall now deal with those grounds the applicant has raised in paragraph 25.

30.The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1) held:

“…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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

31.The Court will look into the Board’s reasons for its decisions.

32.In respect of the applicant’s complaint that the Board was selective in its acceptance of his evidence, the Court of Appeal in Wong Kin Kwok Michael v The Dental Council of Hong Kong CACV 183/2014, Hon Yuen, Kwan and Chu JJA, 20 May 2015 held:

“23.2 … a fact-finding tribunal is entitled to accept parts of a witness’ [sic] evidence and to reject other parts. …”

33.The Board had explained why it accepted the applicant’s evidence of his family background on the one hand; on the other, it rejected his evidence on his espionage accusation and his family being targeted by the Vietnamese authority.  It has also explained the way it treated the hearsay evidence.  In the Board’s Decision, it stated:

“97. While the Baord generally accepts these claims, it does not, however, accept the Appellant ‘s claims to have, subsequent to his arrival in Hong Kong, been accused of having engaged in espionage, releasing state secrets or otherwise targeted by the Vietnamese authority. Likewise, the Board does not accept any members of the Appellant’s family have been targeted by the Vietnamese authorities for their association with the Appellant. For the reasons outlined below, the Board finds his evidence in relation to these matters to be inconsistent, vague and lacking in meaningful detail.

98. In particular, the Appellant’s evidence in relation to these matters was almost entirely based on hearsay evidence. … [the Board explained that the rule against hearsay evidence was not applicable in the context of determining non-refoulement claims.]…

99. Significant time was devoted to both the Appellant’s and the Director’s various submissions as to how the Appellant’s hearsay evidence should be treated by the Board. … The Board does not consider it desirable for a decision-maker to dismiss or discount assertions simply on the basis that they flow from a mixture of first-hand and hearsay evidence. …

102. In assessing the Appellant’s credibility, the Board has been mindful of the multiple competing considerations outlined above as well as the factors outlined in section 37ZD of the Immigration Ordinance and paragraph 17 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.  Having done so, and having regard to the internal coherence of his statements, their consistency with each other and the relevant level of detail he has been able to provide, the Board has formed the view that the Appellant is not a witness of truth and that he has fabricated claims …”

34.The above show how the Board was assessing the evidence.  This shows that the Board was duty-bound to assess the evidence, accepting the evidence it believed and rejecting the evidence it did not believe, including the hearsay evidence.

35.Grounds (1) and (2) fail.

36.Ground (3) is only the applicant’s personal assertion without any evidence in support.  It fails too.

37.In respect of Ground (4), the applicant is correct to assume that because the Board did not accept his evidence on the facts of his claim, the Board found that the applicable risks do not apply to his claim, which is lack of factual basis.  This is the Board’s logical conclusion, which cannot be criticized as prejudicial, subjective or without legal basis.

38.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

CONCLUSION

40.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 26^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