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

HCAL 2626/2019

[2025] HKCFI 850

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2626 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 27 June 2019 of the Torture Claims Appeal Board 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 17 February 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 34, is a national of Vietnam. He arrived in Hong Kong illegally via China on 27 June 2015 and surrendered to the Immigration Department on 29 June 2015. He lodged his non-refoulement claim on the same date.

5.The applicant’s claim was based on his fear of being harmed or killed by his creditor because of his inability to repay a debt from a VND 300 million loan.

6.According to the applicant, the applicant borrowed a loan from the loan shark for his fish breeding business in 2013. The fish died and he failed to repay his debt and he claimed that there were two incidents where he was assaulted and verbally threatened by the creditor and his men. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 31 May 2017 by the Director.

The Director’s Decisions

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In summary, the Director found that the creditor or his followers would wish the applicant to repay the loan and there was never shown any real intention to cause any serious harm or even kill the applicant or materialize their threat [11-14]; state protection was available [15]; and internal relocation alternatives were available and reasonable [17].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 29 March 2019, the Board conducted an oral hearing for his appeal.

10.Having considered the evidence, the Board considered that the applicant had never reported to the police [77] and found that the claimant’s story was full of exaggeration, fabrication, discrepancies, inconsistencies, and bare assertions [82-132]. In any event, the Board found that state protection would be available [133-137]. Having reviewed the reviewed the various Country of Origin Information, the Board was satisfied that it would not be unreasonable or unduly harsh for the applicant to internally relocate [163-175]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds. It therefore dismissed his appeal and confirmed the Director’s Decision.

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

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

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

DISCUSSION

13.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).

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

15.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.”

16.The applicant has raised no valid ground to challenge the Board’s findings.

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.