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

HCAL 2854/2019

[2025] HKCFI 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2854 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 6 September 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 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, aged 39, is a national of Vietnam. On 28 February 2019, the applicant sneaked into Hong Kong from Mainland China by boat and was arrested by the police on the same day. The applicant also lodged his non-refoulement claim. The applicant’s claim was based on his fear of being harmed or killed by his creditor because of his inability to repay his debt.

5.According to the applicant, there were 2 incidents in relation to the creditor’s demand for repayment. In the first incident, the applicant was threatened by phone for having failed to repay the debt for a year. In the second incident, he was assaulted by 2 unknown men at his shop and was injured and sent to the hospital for 30 stitches. Details of his claim are set out in Chinese at paragraph 6 of the Notice of Decision dated 16 May 2019 by the Director (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 summary, the Director found that: the absence or low intensity and frequency of the ill-treated encountered is indicative of a small future risk of harm and the dispute was a private matter [10-14]; state protection was available [15-17]; and internal relocation alternatives were available and reasonable [18-19].

The Board’s Decision

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

9.Having considered the evidence, the Board found that the applicant was dishonest and not credible [42-45]. In any event, the Board was satisfied that it would not unreasonable or unduly harsh for the applicant to internally relocate [47-52]. 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

10.The applicant has filed Form 86 dated27 September 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant deposed in English and he did not agree with the Board’s Decision because he could not go back to his home country as his life is in danger but he did not put forth any grounds.

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 was a dishonest witness and it rejected his evidence in support of his claim.

16.There is no valid ground from the applicant to challenge the Board’s Decision.

17.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

19.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.