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

HCAL 2107/2019

[2024] HKCFI 3217

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2107 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 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 asked for a hearing. However, he was absent at the hearing on 30 October 2024. 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 came to Hong Kong illegally on 27 January 2014. He surrendered to the Immigration Department on 3 November 2014. He lodged non-refoulement claim by written signification on the basis that, if refouled, he would be harmed or killed by his creditor called “Hung” because he was unable to repay his loan from Hung.

5.According to the applicant, he had borrowed 500 million VND from Hung for his fishing business. However, because of a typhoon, his 4 boats sank. He and his wife were saved by other boats. He was unable to repay his debt. Hung had come to his premises together with other people to demand repayment. As he was unable to repay, they had beaten him up with water pipes and wooden sticks. He had reported the matter to police. The police only advised him to repay his debt, but they took no further action. He had moved to live in Mong Cai in Quang Ninh Province, leaving his wife and children behind. After he was told that Hung had found out where he was, he moved to some other places. Finally, with his friend’s help, he came to Shenzhen, China and to Hong Kong illegally. Details of his story are set out in paragraphs 8-29 of the Board’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. In elaboration, the Director found that (i) the chance of being harmed or killed if he returns to Vietnam is low [11]-[16]; (ii) state protection will be available [17]-[24]; and internal relocation is a viable option [25]-[31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.

9.The Board held a hearing on 22 January 2019. The applicant attended the hearing. Having considered his evidence and the country of origin information (“COI”), the Board found that the applicant’s evidence was unreliable [77]; it agreed with the Director on state protection [31] and internal relocation would be viable [35]-[40]. The Board therefore dismissed his appeal.

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

10.The applicant has filed Form 86 dated 24 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 reiterated his story of coming to Hong Kong, without stating the specific reason to challenge the Board’s Decision.

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 found the applicant’s evidence not credible. At paragraph 77 of the Board’s Decision, the Board stated:

“The Appellant’s evidence relating to the facts on which his claim was based was questionable and unreliable, and I did not find his evidence credible. …”

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 unrepresented and did not appear.