Tran Duy Long v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2472/2019

[2025] HKCFI 515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2472 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 31 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 20 January 2025. I shall deal with his application on the papers.

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 43, is a national of Vietnam. He entered Hong Kong illegally on 6 June 2017 and he surrendered to the Immigration Department on 7 June 2017. He lodged a non-refoulement claim on the basis that, if refouled, he will be harmed or killed by an enemy called Ah Tung, a guard of his potential employer, with whom he had quarreled.

5.According to the applicant, in May 2017, he was seeking a construction work employment and he had quarreled with Ah Tung twice. He was not hurt physically, but Ah Tung had called a group of triad members gathering outside his resident premises, holding knives and swords, causing him psychologically intimidation. He had reported to police, which did not take any action. He therefore considered that state protection would not be available. He had no money, so internal relocation is also not viable. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 May 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. In elaboration, the Director found that (i) there was no evidence to support future risk of harm from Ah Tung if he returns to Vietnam [12]-[13]; (ii) state protection would be available [14]; and internal relocation would be viable [15]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 3 July 2019, the Board conducted an oral hearing for his appeal.

9.Having considered the evidence, the Board made the following findings:

(1)  the applicant was not a credible witness [40];

(2)  he had not made out his case [51];

(3)  state protection would be available to him [52]; and

(4)  internal relocation would be viable [70].

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

10.The applicant has filed Form 86 dated 27 August 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affidavit in support of his application, the applicant did not raise any specific ground 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, 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 unrepresented and did not appear.