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

[English Translation - 英譯本]

HCAL 3165/2019

[2024] HKCFI 2618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3165 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Background

1.This is the Applicant’s application by Form 86 filed on 25 October 2019 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 October 2019 (the “Board’s Decision” or the “Decision”) dismissing his (appeal) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 March 2019 (the “Notice”).

2.The Applicant had not requested an oral hearing. Having considered the nature of the application, the grounds put forward, the papers and evidence concerned as well as all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.In 2013 and 2014, the Applicant fled Vietnam for Hong Kong due to debt problem, he was then refouled to Vietnam for the first time. However, he came to Hong Kong again, claiming that his life was under threat since the debt problem was yet to be resolved. Subsequently, his debt problem was resolved and he was refouled to Vietnam for a second time in mid-2018. Nevertheless, several months later, the Applicant sneaked into Hong Kong again allegedly because of disputes between him and his brothers over some land. He made a non-refoulement claim by way of written representation dated 6 December and 18 December 2018.

4.In due course, his non-refoulement claim was assessed on all the applicable grounds under the Unified Screening Mechanism (the “USM”), which included: 

(1)  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115 (the “Torture Risk”);

(2)  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 (the “BOR 3 Risk”);

(3)  Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (the “BOR 2 Risk”); and

(4)  Risk of persecution by reference to the non-refoulement principle under 1951 Convention relating to the status of Refugees (the “Persecution Risk”).

5.His claim was rejected by the Director’s decision in the Notice dated 8 March 2019. His appeal against the Director’s decision was dismissed by the Board’s Decision dated 14 October 2019. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

6.The Applicant was born in Haiphong of Vietnam on 22 July 1987. He is now aged 37, single with two younger brothers and three sisters living in Vietnam. The younger brothers are already married with families of their own. The Applicant’s father owned two houses and two pieces of land. He was minded to give the two pieces of land to the Applicant’s younger brothers and the two houses to the Applicant. Feeling the arrangement was unfair, the younger brothers were indignant over this. Coupled with the fact that their relationship with the Applicant had not been a good one since they were small, they were angry at him.

7.Since his refoulement to Vietnam in mid-2018, the Applicant had had numerous arguments and fights with his younger brothers over the distribution of their father’s assets. He sustained superficial injuries as a result but needed not receive medical treatments, nor did he report the matter to the police. As he could no longer put up with what happened at home, he decided to leave Vietnam.

The finding of the Board

8.The Applicant testified before the Board. The Board found him candid and honest and accepted his evidence. Besides, he agreed that he could live in other cities of Vietnam or any other places to avoid arguments with his younger brothers. Applying the law applicable to non-refoulement protection to the case as he asserted, the Board found the Applicant’s claim for protection did not fall under any of the four applicable grounds under the USM.

9.In respect of Torture Risk ground, no weapon was ever used during the arguments and fights between the Applicant and his younger brothers. The Applicant only sustained superficial injuries and required no medical attention. Besides, there was no evidence that these arguments and fights were acts (inflicted by) or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Therefore the Board found that the Applicant had failed to prove the Torture Risk ground.

10.In respect of BOR 2 Risk ground, the Applicant failed to provide any evidence to show that he would be deprived of his life by the Vietnamese government or state authority or that his life would be threatened by a risk targeting him personally, if refouled to Vietnam.

11.In respect of BOR 3 Risk ground, the Applicant failed to provide any evidence to show that he would be subjected to torture, cruel, inhuman, degrading treatment or punishment, if refouled to Vietnam.

12.In respect of Persecution Risk ground, the Board found that the dispute between the Applicant and his younger brothers was only a family dispute over some land and was not on account of any of the five reasons under 1951 Convention relating to the status of Refugees as to entitle him to protection. The Applicant also agreed that he probably would not face such risk even if he was refouled.

13.Besides, on the basis of authoritative and credible country of origin information (“COI”), the Board was satisfied that adequate state protection was available to the Applicant, if he is refouled back to Vietnam. The Board also found that the Applicant could avoid the perceived risks from his younger brothers through internal relocation.

14.For these reasons, the Board found that the Applicant’s claim for protection did not fall under any of the four applicable grounds under the USM and was not entitled to non-refoulement protection. His appeal against the Director’s Notice was dismissed accordingly.

Grounds for judicial review

15.The Applicant did not advance any specific grounds for judicial review. In his supporting affidavit dated 25 October 2019, he stated that he did not agree with the Board’s Decision and his life would be in danger if refouled to Vietnam.

Legal principles applicable to judicial review

16.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and the credibility of witnesses, find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, for instance, all the applicable grounds under the USM as well as risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[1].

Discussion

17.In essence, the grounds advanced by the Applicant was that he disagreed with the Board’s finding that his claim for protection did not fall under any of the four applicable grounds under the USM.

18.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the four applicable grounds under the USM (which included: Torture Risk, BOR 3 Risk, BOR 2 Risk and Persecution Risk). The Board had also correctly set out the applicable legal principles, the standard of proof and cited relevant authorities to support its Decision. The Board clearly understood that its duty was to consider all relevant matters concerning the Applicant’s claim afresh and not just whether to uphold or dismiss the Director’s decision in the Notice.

19.The Board assessed the Applicant’s claim on the factual case as he asserted. The Applicant could have no reason to query the Board’s acceptance of his factual case. By applying the legal principles applicable to non-refoulement protection to the factual case asserted by the Applicant, the Board found the Applicant’s claim for protection did not fall under any of the four applicable grounds under the USM. This is a mixed finding of fact and of law.

20.The Court was satisfied that there was no error of law or procedural unfairness in the Board’s Decision. The Decision was not Wednesbury unreasonable or irrational (that means by adopting the Wednesbury test, the judge was required only to examine the evidence to determine whether it was such that a reasonable magistrate, properly directing himself in law, could not possibly make such a decision). The Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

21.For the above reasons, this leave application is refused.

Dated the 27^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

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