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

HCAL 725/2024

[2024] HKCFI 2084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 725 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 dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 July 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision[1], which is 27 October 2022. His application was filed on 7 May 2024, which is late for more than one year and six months. This issue will be dealt with below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 24 July 2024. Before this Court, the applicant applied for withdrawal of his application. I shall deal with it below.

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 40, is a Vietnamese. He entered Hong Kong illegally in September 2020 and was arrested by the police on 22 December 2020. The applicant made a non-refoulement claim on 18 February 2021. 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.

5.According to the applicant, he ran a pig farm business. In late 2010, he borrowed money from the creditor to expand his pig farm. In early 2011, a swine flu broke out and the Vietnamese government ordered the culling of pigs. The applicant scaled down his pig farm to reduce costs. By the end of 2015, due to a reduction in income, the applicant was no longer able to pay monthly instalments to the creditor. Shortly thereafter, 5 - 6 underlings of the creditor attended his home, in which one of them carried a pistol and one with a wooden stick. They threatened to kill the applicant and broke his main door. The underling with the wooden stick also hit the applicant two times, causing swellings to his shoulder. The creditor’s underlings then left after giving the applicant another three months to repay the loan. He did not report the matter to the police and self-treated his wound.

6.Between early 2016 and end of 2020, the applicant relocated away from his hometown to Halong Bay. In August 2020, he saw an underling of the creditor at a restaurant in Halong Bay. The applicant was scared and therefore moved to stay at another hostel. Eventually, he left Vietnam for China illegally in September 2020 and sneaked into Hong Kong from Shenzhen in the same month.

7.Meanwhile, the applicant’s wife also came to Hong Kong in November 2020. He maintained contact with his mother while in Hong Kong and was informed in September 2021 that the creditor had come over looking for him.

8.The applicant was of the view that he could not seek protection from the police because he thought they would not intervene in private debt dispute. He also considered internal relocation not viable because he believed that the creditor would still be able to find him.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 December 2021 (“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 (i) the low intensity of past ill-treatment by the creditor and his underlings indicated that they had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as he claimed [11] - [13]; (ii) 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 [14]; (iii) state protection would be available to him [15] - [19]; (iv) internal relocation would be viable [20] - [21] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22] - [27], Persecution risk [28] - [33] or Torture risk [34] - [36].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 14 July 2022, the Board conducted a hearing.

13.The Board noted material discrepancies in the applicant’s claim as to (i) the time when he borrowed money from the creditor; (ii) the start and end date of his pig farm business; (iii) the time for the outbreak of the swine flu; (iv) when he escaped to Halong Bay and for how long he stayed there; (v) whether his wife was also a borrower of the loan and (vi) monthly instalments of the loan [53] - [66].

14.The Board considered it implausible that the applicant could startup his pig farm business before obtaining a loan from the creditor in light of his financial condition and that he could run the business without a bank account [67] - [70]. In fact, the applicant demonstrated a lack of knowledge towards the operation of a pig farm business and his evidence was also inconsistent with the country of origin information (“COI”) [102] - [110].

15.Regarding the loan from the creditor, the Board noted from the COI that it was more than 180 times the annual income of an average Vietnamese in 2010 [46]. It had doubts that the creditor would not have checked the background and repayment ability of the applicant before lending him money. It was also unbelievable that the applicant could repay the monthly instalments to the creditor punctually between 2010 and 2015 given his claimed profitability from his pig farm business [75] - [88].

16.The Board found the applicant not credible and that he was not a witness of truth. Given the numerous discrepancies and implausibility, the Board did not accept that the applicant (i) ran a pig farm; (ii) took out the loan from the creditor; (iii) managed to pay monthly instalments punctually until 2015 [111] - [116].

17.Based on such findings and given that there was no evidence of involvement from the Vietnamese government [90] - [92] and the claimed injury had not reached the requisite level of severity [93] - [97], 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 [132] - [155], [180] - [183]. Furthermore, state protection [124] - [130], [177] - [178] and internal relocation [156] - [166], [179] would also be available to the applicant according to the COI.

18.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

19.The applicant has filed Form 86 on 7 May 2024 for leave to apply for judicial review of the Board’s Decision.

DISCUSSION

20.I have briefly considered the Board’s Decision, which I find to be logical and reasonable in its analysis of the facts and rejection of the applicant’s evidence. There is no issue of procedural irregularity or Wednesbury unreasonableness in its finding of the facts and decisions.

21.As mentioned above, the applicant appeared before this Court and applied for withdrawal of his application.

22.I had explained to him that his application might have to be dismissed and he might not make the same application again. He confirmed that he understood and he stood by his application for withdrawal.

23.There is no evidence that the applicant made his application for withdrawal not of his own free will.

24.Other than this application, there is nothing outstanding in this action.

25.In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

CONCLUSION

26.Accordingly, I dismiss his application.

Dated the 29^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