Bui Manh Kien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1693/2019 on BabelCite. This High Court CFI judgment was delivered on 22 August 2024.
1. The applicant applies for leave to apply for judicial review of the Decision dated 29 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”).
Cites 2 cases
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HCAL 1693/2019 [2024] HKCFI 1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1693 of 2019
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
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 29 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 46, is a Vietnamese. He entered Hong Kong illegally from Mainland China on 11 October 2016 and he surrendered to the Immigration Department on 14 October 2016. The applicant made a non-refoulement claim on 14 October 2016 and 28 October 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by a drug trafficker (“the drug trafficker”) because he reported him to the police. 5.According to the applicant, when he was working as a receptionist in a hotel on 1 July 2016, he saw the drug trafficker enter the hotel with some white powder and tablets in his bag. Subsequently, some unknown male went to the drug trafficker’s room. The applicant overheard their conversation and suspected that they were engaged in drug dealing. After he was unsuccessful in contacting his supervisor, he reported the matter to the police. An hour later, the applicant saw the drug trafficker left the hotel with two men who he believed were plain-clothes police officers. 6.A few days later, the applicant received phone message from an unknown person that he would be responsible for his acts. There was also foul language in the message. Later on the same day, while the applicant was having lunch in a restaurant, he saw a few youngsters with long swords and other weapons approaching him. The applicant immediately fled and reported the matter to the police. About half an hour later, the police returned call to the applicant that the youngsters were having a fight at that restaurant and the incident had no connection with him. The applicant however did not believe what the police told him. 7.Two days thereafter, while the applicant was driving home on his motorbike, he collided with a private car travelling in the opposite direction. The claimant fell from the motorbike as a result. Although his head and right shoulder were hurt during the accident, he started running from the scene immediately as he thought it was another act of revenge from the drug trafficker. About 3 hours after the traffic accident, the applicant received a message on his phone saying that he was lucky to avoid the attack, but he would not be that lucky the next time. 8.The applicant then left his hometown and relocated to different places within Vietnam. While he was staying in a hotel at Tai Ping, he was informed by the receptionist that someone telephoned him, who he believed was someone related to the drug trafficker. During this period, his wife told him that she also received messages from some unknown person looking for him. 9.The applicant believed he was no longer safe in Vietnam and therefore decided to leave the country. He left for China on 4 October 2016 and sneaked into Hong Kong from Shenzhen on 11 October 2016. 10.The applicant seldom contacted his family after he arrived in Hong Kong and his last contact was with his mother in November 2016. The applicant also had no update about the drug trafficker. 11.The applicant considered internal relocation not viable because the drug trafficker could utilise triad network and his connection with the police to locate him. He was also of the view that he could not seek protection from the police given his previous experience after reporting the drug trafficker to them. 12.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 May 2017 (“the Director’s Decision”). The Director’s Decision 13.The Director considered the applicant’s claim in relation to the following risks:
14.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the perceived harm from the drug trafficker was merely the applicant’s own speculation. In any event, the previous actions from the drug trafficker indicated that he had no real intention to seriously harm the applicant [12]. 15.Furthermore, (i) state protection would be available to him upon his return [13]-[17]; (ii) internal relocation would be viable [18]-[23] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[35] or Torture risk [36]-[39]. The Board’s Decision 16.The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 4 January 2019, for which the applicant failed to attend. Notice of the Board’s intention to determine the applicant’s appeal in his absence was sent to his reported address on the same day. As the applicant failed to give any written explanation for his failure to attend the hearing within 7 days, the appeal was determined in his absence [66]-[69]. 17.The Board found no clear evidence of dangerous drug trafficking and no evidence to show what happened to the applicant had any connection with the drug trafficker or the applicant’s report to the police [85]-[89]. In fact, all the applicant’s claims were merely his speculations [90]. The Board also noted there was discrepancy on how the drug trafficker left the hotel with the two unknown men and the claimed drug [93]-[101]. 18.Given that the applicant did not attend the hearing, he was unable to explain the implausibility and inconsistencies to the Board, so that he failed to discharge his burden of proof [70]-[73], [102]-[105], [153]-[155]. In any event, the claimed ill-treatment did not attain a minimum level of severity [106], [156] and the applicant’s failure to seek protection in Mainland China was also unexplainable [107]-[110]. 19.Based on such findings, the Board did not consider the applicant to be a credible witness and did not accept his account of events to be true in general [113]-[115]. 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 [44]-[53], [120]-[141], [160]-[163]. Furthermore, state protection and internal relocation were also available to the applicant according to the country of origin information [24]-[36], [54]-[62], [116]-[118], [142]-[152], [157]-[159]. 20.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 21.The applicant has filed Form 86 on 19 June 2019 for leave to apply for judicial review of the Board’s Decision. 22.In his affirmation in support of his application, the applicant did not raise any specific ground. DISCUSSION 23.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). 24.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. 25.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
26.The applicant had failed to attend the Board’s hearing and he had not given any explanation for his absence. The Board had considered the merits of his claim. It was entitled to come to its conclusion as it did under the circumstances. 27.The applicant has not been able to raise any valid reason to challenge the Board’s Decision. 28.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. CONCLUSION 29.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 22nd day of August 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
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Cases cited in this judgment