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

HCAL 1918/2019

[2024] HKCFI 2283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1918 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 July 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 is a national of Vietnam. He sneaked into Hong Kong illegally from Shenzhen on 13 March 2018 and was arrested. He lodged his non-refoulement claim by 2 written submissions respectively dated 2 May 2018 and 24 May 2018 on the basis that, if refouled, he would be harmed or killed by a loan shark as he was unable to repay the loan.

5.According to the applicant, he had borrowed a loan of 500 million Vietnamese currency from a loan shark in 2014 and he was unable to repay it. In late 2017, the loan shark came with 10 people to his house. They assaulted him with kicks and weapons. He was badly hit. He did not seek medical care or police protection because he feared that he might be located. His friends advised him to leave Vietnam. He had been to Quang Ninh Province where his creditor did not find him. He crossed the border to China on 11 March 2018 and sneaked into Hong Kong. He considered that he was suffering from stress and psychological and mental distress. He considers that state protection will not be available to him because the police in Vietnam are corrupt. Internal relocation is not viable because he has no connection and no money. Also the loan shark has wide connection to find him. Details of his story can be found in paragraph 6 of the Director’s Notice of Decision dated 24 December 2018 (“the Director’s Decision”).

The Director’s Decision

6.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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the reasons: (i) the low intensity of past ill-treatment is indicative of a low future risk of harm upon his return to Vietnam [10]-[14]; (ii) state protection will be available to him [15]-[20]; and (iii) internal relocation is a viable option [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board considered that an oral hearing was unnecessary for a fair disposal of the appeal [23].

9.The Board agreed with the Director that low intensity of past ill-treatment by the creditor is indicative of a small future risk [25]. The Board further found that there was no evidence to show that the state was involved [26]; that state protection would be available to the applicant [29]-[33]; and internal relocation was a viable option[41]-[45].

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

10.The applicant has filed Form 86 dated 9 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit in support of his application, the applicant only attached a copy of the Board’s Decision without specifying any reason to challenge it.

DISCUSSION

12.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).

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

14.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.”

15.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

16.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

The applicant was not represented.