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

HCAL 2901/2019

[2025] HKCFI 2166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2901 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 13 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.The applicant asked for a hearing. However, he was absent at the hearing on 16 April 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 is a national of Vietnam. According to the applicant, he claimed to have arrived in Hong Kong illegally on 22 November 2015 and surrendered to the Immigration Department the next day. In due course, he lodged a non-refoulement claim.

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.

6.According to the applicant, there were 2 incidents in 2015 in which the applicant was injured by the creditor and his men with knife and iron rod for the failure to repay his debt. Details of his claim are set out in Chinese at paragraph 6 of the Notice of Decision dated 24 May 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

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 assessed the applicant’s claim and dismissed his claim. In summary, the Director found that: the absence or low intensity and frequency of the ill-treatment encountered was indicative of a small future risk of harm and no suggestion that there was any government involvement [11-14]; state protection was available [15-16]; 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 26 August 2019, the Board conducted an oral hearing for his appeal, during which the applicant failed to attend the hearing but did not give any explanation for his absence [126-127].

10.Having considered the evidence, the Board did not accept applicant’s credibility, and on the evidence before it, found that there will no risk of serious harm if he returns to Vietnam because the debt had been repaid [128-129]. In any event, the Board was satisfied that state protection was available and it would not unreasonable or unduly harsh for the applicant to internally relocate [131-134]. 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 filed the Form 86 on 3 October 2019 for leave to apply for judicial review of the Board’s Decision. The applicant did not put forth any valid grounds for his application.

12.In the applicant’s affirmation in support of his application, the applicant exhibited the Board’s Decision and deposed that would need protection from his creditor as he would be harmed but again, he did not put forth any grounds.

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.