Nguyen Van Gioi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1647/2019

[2024] HKCFI 1989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1647 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 18 April 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 Mainland China on 7 October 2014. He surrendered to the Immigration Department on 8 October 2014 and made a non-refoulement claim on the same day. 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 and had connections with the authorities, because he failed to repay a loan to her. The applicant was arrested for theft on 24 January 2015 and was sentenced to imprisonment of six months on 23 February 2015.

5.According to the applicant, he took out a loan from the creditor in January 2014 to startup his shell farming business. The applicant spent the money borrowed to purchase a fishing boat and fishing nets; feeds and drugs. Thereafter he started operating his shell farming business. In mid-April 2014, when the applicant was working on the sea, his boat sank due to the sudden change of weather. A week later, all his harvest at the shell farms were also flushed away during a storm. As a result, the applicant suffered a financial loss and was unable to make loan repayment. The applicant begged the creditor for an extension of time for repayment. She agreed to give him an extra three months.

6.One day in July 2014, the creditor together with five of her underlings, who carried with them wooden rods and water pipes, came to visit the applicant. The creditor turned down the applicant’s request for further extension of time for repayment and threatened to hire triad members to kill him if he failed to repay the loan. Her underlings then used the wooden rods to hit the applicant’s shoulders and back thrice. The applicant had swellings over his body as a result, which he self-treated with painkillers and ointment. He did not consult a doctor, nor did he report the matter to the police.

7.The applicant was worried about his safety. After consulting his family, he relocated to his friend’s home the next morning and stayed there until October 2014. Later on, he still felt unsafe for the long run and decided to leave Vietnam. He therefore left for China in October 2014. He arrived in Shenzhen on 4 October 2014 and entered Hong Kong illegally on 7 October 2014.

8.The applicant was of the view that he could not seek protection from the police because they were corrupt and he had no money to bribe them. The applicant also considered internal relocation not viable because he would be located by the creditor anywhere within Vietnam given her triad network and her connection with the police.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 23 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 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”).

11.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 indicated that she had no real intention to seriously harm or kill the applicant [12]; (ii) state protection would be available to him upon his return [14]; (iii) internal relocation would be viable [13], [15] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [16]-[21], Persecution risk [22]-[27] or Torture risk [28]-[32].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 1 April 2019, the Board conducted a hearing.

13.The Board found the applicant’s story adequately consistent as to the money lending and the loan collection incidents after the loan was overdue to the creditor [42]. However, the adjudicator was of the view that the previous actions taken by the creditor were merely intended to pressurise the applicant to repay the loan, rather than to really cause harm on him [45]. In any event, as the applicant admitted during the hearing that his mother had already helped him clear off the debt in March 2019, the creditor should no longer be a threat to him or his family [39], [74].

14.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [3]-[8], [43]-[59], BOR 2 and BOR 3 risk [9]-[17], [61]-[68] or Torture risk [18]-[22], [69]-[78]. In any event, state protection was also available to the applicant according to the country of origin information [46]-[57].

15.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

16.The applicant has filed Form 86 on 17 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant did not raised any specific ground.

DISCUSSION

18.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).

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

20.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.”

21.As the applicant’s mother had settled his debt, the applicant has no ground to support his application because he will not be subjected to any of the applicable risks if he returns to his country.

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

CONCLUSION

23.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 30^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