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

HCAL 679/2020

[2024] HKCFI 2214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 679 of 2020

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 19 March 2020 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 45, is a Vietnamese. He entered Hong Kong illegally on 3 September 2019 and he surrendered to the Immigration Department on 12 September 2019. The applicant made a non-refoulement claim on 2 October 2019. 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, because he failed to repay his loan.

5.According to the applicant, he borrowed money from the creditor in early October 2018 to startup a lottery ticket selling business. He was able to repay monthly instalments to the creditor from November 2018 to April 2019. However, from May 2019, he suffered great loss in his business and could no longer afford paying monthly instalments. One morning in May 2019, the creditor and four of his underlings (“the four underlings”) came to the applicant’s home demanding repayment. The creditor agreed to give the applicant half a month to repay, but threatened to send someone to beat him up if he could not repay by then.

6.Around two weeks later, the four underlings returned to the applicant’s home and demanded repayment. Upon knowing that the applicant was unable to repay, they vandalised his home and beat him up with wooden pole. The four underlings also threatened to kill the applicant if he failed to repay the loan within one week’s time. The applicant was beaten until he lost consciousness and was sent to the hospital by his neighbour. He suffered from a head injury and had bruises all over his body. The applicant reported the matter to the police after his discharge from the hospital, but no action was taken.

7.The applicant then relocated to his friend’s home as he was scared to be killed. Eventually, upon advice from his friend, he decided to leave Vietnam for his safety. He entered China illegally on 1 September 2019 and then sneaked into Hong Kong from Shenzhen on 3 September 2019.

8.The applicant maintained contact with his family while in Hong Kong. His wife told him that she had relocated back to her maiden home with their children because she needed to take care of her parents. Meanwhile, the applicant’s father told him that the creditor and his underlings had gone to his home once looking for him.

9.The applicant was of the view that he could not seek protection from the police because he believed that they colluded with triad members. He also considered internal relocation not viable because he felt that the creditor could still find him.  

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 December 2019 (“the Director’s Decision”).

The Director’s Decision

11.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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the past behaviour of the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as he claimed [12]-[14]; (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 [15]-[16]; (iii) state protection would be available [17]-[19]; (iv) internal relocation would be viable [20]-[26] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[38] or Torture risk [39]-[42].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 13 March 2020, the Board conducted a hearing.

14.The Board found the applicant was only attacked once and there was no evidence suggesting that the creditor was serious in carrying out his threat [40]. Meanwhile, the applicant’s claim about the unavailability of state protection was purely a speculation as he had never sought any assistance from the higher authority [42].

15.Based on such findings, 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 [6]-[15], [41], [43]-[50]. In any event, internal relocation would also be available [51]-[53].

16.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

17.The applicant has filed Form 86 on 17 April 2020 for leave to apply for judicial review of the Board’s Decision.

18.In his affirmation in support of his application, the applicant says he disagrees with the Board’s Decision and he cannot return to his country because his life will be in danger. He did not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

19.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).

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

21.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.”

22.On the reasons given, the Board considers that the applicant has not shown that he will be subjected to any of the applicable risks if he returns to Vietnam. Also, internal relocation is a viable option for him.

23.The applicant has raised no valid reason to challenge the Board’s Decision.

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

CONCLUSION

25.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 5^th day of September 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