Bui Do Son v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1517/2019

[2024] HKCFI 1679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1517 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 31 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, aged 29, is a Vietnamese. He entered Hong Kong illegally from Shenzhen on 29 July 2016. He was arrested by the Immigration Department on 1 August 2016 and he lodged a non-refoulement claim on 15 December 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by his family’s creditor (“the creditor”) as well as his/her associates.

5.According to the applicant, his family borrowed a loan from the creditor, who had triad background, to invest in a trading business for raw construction materials. The business was forced to close down due to a fire in June 2014, so that his family was unable to repay the loan to the creditor. In September 2014, three triad members went to the applicant’s home demanding loan repayment. They left after giving a week’s time for his family to repay the loan. A week later, the triad members returned with wooden sticks. As the applicant’s family was still unable to repay the loan, they forced the applicant to smuggle illegal drugs for them, failing which they would kill him. The applicant was scared and fled from his hometown to Saigon. He was found by some triad members at a hostel in February 2015. The applicant was then assaulted for ten minutes and was given a last warning that he would be killed the next time if he refused to smuggle illegal drugs for them. The applicant went to a clinic for treatment afterwards. He also reported the matter to the police twice within a week, but they did not take any follow-up action. Thereafter, the applicant kept relocating to stay with different friends. Eventually, he left Vietnam for Mainland China on 27 July 2016 and then sneaked into Hong Kong on 29 July 2016.

6.The applicant maintained contact with his family since his arrival in Hong Kong. During his last contact with them in February 2018, he was informed that triad members went to his home seeking for his whereabouts in December 2017, during which his parents and his brother were beaten up.

7.The applicant was of the view that the police could not offer him protection from the triad because they did not take any follow-up action despite he reported the assault to them twice. The applicant also considered internal relocation not viable because the triad had the ability and resources to locate him as long as he stayed in Vietnam due to the residency registration requirement.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 5 October 2018 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.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 the creditor and his/her associates is indicative of the unlikelihood of future risk of harm upon his return to Vietnam [12]; (ii) state protection will be available to him upon his return [13]; (iii) internal relocation is viable [14] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [15]-[20], Persecution risk [21]-[25] or Torture risk [26]-[29].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 3 April 2019, the Board conducted a hearing.

12.The Board considered the circumstances and details of the loan implausible after taking into account the country of origin information [31]. It also noted that the applicant gave inconsistent evidence as to the number of times he had been assaulted [32]. Although it accepted that due to the loan borrowed by his family from the creditor, the applicant had been verbally threatened, demanded to smuggle illegal drugs and assaulted, the Board was of the view that the suffering by the applicant was minor and there was nothing to show that the creditor would escalate his action. In any event, the elapse of time should have substantively diluted the imminence and rage by the creditor against the applicant. The Board also found there was no reliable evidence to prove the inaction by the police given that the applicant relocated shortly and made no follow-up action [58]-[89].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [91]-[102], [132], BOR 2 and BOR 3 risk [103]-[114], [133]-[134] or Torture risk [115]-[128], [135]. 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

14.The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s Decision.

15.In the affirmation in support of his application, the applicant said that he disagreed with the Board. He reiterated his story for coming to Hong Kong without raising any specific ground.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.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.”

19.For the reasons given in paragraph 12, the Board did not accept the applicant’s claimed facts. It went further to find that state protection would be available to him. It is obvious that illegal smuggling of drugs is prohibited in Vietnam. There is no reason that the state will not take action against such activity, thus will provide protection to the applicant. The applicant has raised no valid ground to refute the Board’s finding of the facts.

20.The applicant therefore fails to show that his intended judicial review of the Board’s Decision has any reasonable prospect of success.

CONCLUSION

21.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 11^th day of July 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