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

HCAL 2195/2019

[2025] HKCFI 146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2195 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 4 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s 2^nd Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. 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.

4.The Board’s Decision was written in Chinese. However, the applicant submitted his affirmation in support of his application in English. For ease of reference for the applicant, this Judgment is written in English.

The applicant

5.The applicant, aged 37, is a national of Vietnam. On 28 May 2017, he was arrested by police for illegally entering Hong Kong. He was referred to the Immigration Department. By written significations respectively dated 19 June 2017 and 21 June 2017, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor Chu The Hung (“Chu”) because he was unable to repay his loan.

6.According to the applicant, he borrowed 900 million Vietnamese currency from Chu for his poultry farm in May 2016. Unfortunately, because of a plague, his business collapsed and he was unable to repay the loan. Chu was an ex-police officer. He had connections with the triad and police in Vietnam. In January 2017, Chu came to him together with 4 men. They assaulted him because he was unable to repay the loan. He only suffered light injuries for which he did not need medical treatment from hospital. He recovered after 20 days. In order to avoid Chu, he had been staying in various places in Vietnam. But he was located when he was in Da Nang. Eventually, he came to Hong Kong through Shen Zhen.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 1 August 2018 (“the Director’s 1^st Decision”).

The Director’s Decision

8.The Director considered the applicant’s claim in relation to the following risks (“the applicable 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”).

9.By way of the Director’s Decision, the Director rejected his claim on the applicable risks for the reasons that (i) the probability of being harmed or killed by Chu in Vietnam was low [13]; (ii) state protection would be available [14]-[17]; and internal relocation would be viable [18]-[23].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 5 June 2019, the Board conducted an oral hearing.

11.Having considered the evidence, the Board dismissed his appeal on 3 reasons:

(1)  there was no evidence to prove the loan; and

(2)  there was no evidence to prove his injuries; and

(3)  even if his evidence were accepted, the injuries he suffered do not meet the requirements under the statutory provisions or the Convention for non-refoulement claim.

12.For the reasons above, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

13.The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

15.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).

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

17.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.”

18.It appears that the Board had not taken any proactive step to verify the applicant’s evidence on his loan and injuries. Nor had it given the reasons for not believing the applicant. This Court accepts that even if the Board accepted his evidence, the Board was correct to say that the applicant’s claim is unfounded.

19.The applicant has not raised any valid reasons to challenge the Board’s Decision.

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

DISPOSITION

21.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.