Bui Thai Hoc v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 379/2024

[2024] HKCFI 1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 379 of 2024

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 24 January 2024 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 July 2024.

The applicant

3.The applicant, aged 36, is a Vietnamese. He entered Hong Kong illegally on 12 January 2016 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 1 February 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”) because he failed to repay his loan.

4.On 12 August 2017, the applicant was arrested for assault occasioning actual bodily harm and assault on a police officer (“the offences”). On 12 December 2017, the applicant withdrew his non-refoulement application. On 28 November 2022, he was re-arrested by the police and was sentenced to imprisonment of 7 months for the offences on 15 February 2023. On 9 August 2023, the Immigration Department received the applicant’s request to re-open his non-refoulement application. On 19 September 2023, the applicant was sentenced to imprisonment of 10 months for possessing a false document.

5.According to the applicant, in April 2014, he borrowed money from the creditor to startup his fashion business. In April 2015, a fire broke out destroying everything in his shop, so that he was no longer able to repay instalment to the creditor. In May 2015, the creditor and ten underlings came to the applicant’s home with iron rods and wooden sticks demanding loan repayment. They assaulted the applicant with fist and kicks. One of them even hit the applicant with a broken glass, causing him to bleed at his right armpit. In the end, the creditor left after threatening the applicant that he would be killed if he failed to repay the loan within two months.

6.The applicant went to a hospital to treat his wound. He did not dare to report the incident to the police because he was afraid that they were colluded with the creditor. As the applicant felt unsafe, he left Vietnam in January 2016. Eventually, he sneaked into Hong Kong on 12 January 2016.

7.The applicant maintained contact with his wife while in Hong Kong. She told him that the creditor had come to demand loan repayment and had also threatened to kill him if he failed to repay. The applicant was of the view that he could not seek protection from the police because he had no money to bribe the corrupted police and that they would not intervene in private debt dispute. He also considered internal relocation not viable because he believed that the creditor would utilise his network to find him.

8.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 2 November 2023 (“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 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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the past action of the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk was not as imminent as he claimed [14] - [15]; (ii) the applicant’s behaviour was inconsistent with someone genuinely in fear [16]; (iii) there was no evidence showing that the Vietnamese government was involved in the matter or that the creditor had means to locate the applicant anywhere within Vietnam [17] - [18]; (iv) state protection would be available to him [19] - [23]; (v) internal relocation would be viable [24] - [25] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26] - [31], Persecution risk [32] - [37] or Torture risk [38] - [41].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 18 January 2024, the Board conducted a hearing.

12.The Board found there was a lack of objective evidence to support the applicant’s claim on the loan, his fashion business and his injury [23]. His evidence about the use of the loan as well as the profitability of his business were also ambiguous and lacked details. Furthermore, there were also inconsistencies as to whether the applicant had engaged any work before he started up his fashion business and the details of the loan [24].

13.The Board considered the applicant’s evidence not credible [25]. It was neither accepted that the applicant was indebted to the creditor nor the occurrence of the debt collection incidents. The Board also considered that the applicant failed to prove that the creditor had injured him in the past and would harm him upon his return to Vietnam [27].

14.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [31] - [44]. Furthermore, state protection and internal relocation would also be available according to the country of origin information [28] - [30], [45] - [48].

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 27 February 2024 to apply for leave to apply for judicial review of the Board’s Decision.

17.He attached a statement of grounds in support of his application to Form 86. I shall summarize the grounds as below.

(1)  The Board’s Decision is unreasonable.

(2)  The Board was unfair as it placed too much reliance on the Country of Origin Information without taking his personal background and experience into account.

(3)  The Board was unfair to require him to answer questions unreasonably. It was also unfair not to accept his explanations.

(4)  The Board was irrational in rejecting his torture risk.

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. Before me, the applicant said that he did not mean that the Board was wrong, but he wants the Court to review its decision.

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.For the reasons given in paragraph 12, the Board rejected his evidence in support of his claim. He has no factual basis in support of his claim.

22.Those grounds in paragraph 17 are the applicant’s bare assertions without any evidence in support. They are not valid reasons to challenge the Board’s Decision. Before me, the applicant said he did not think the Board was wrong. He just asked this Court to review the Board’s Decision. I find no reason to interfere with the Board’s finding of the facts.

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

CONCLUSION

24.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 27^th 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

Form CALL-1