LE TRUNG KIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1755/2019

[2024] HKCFI 2395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1755 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 April 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 did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 37, is a Vietnamese.  He entered Hong Kong illegally on 18 August 2015 and was arrested by the police on 20 August 2015.  The applicant made a non-refoulement claim on 15 October 2015.  The claim was made on the basis that, if refouled, he would be arrested and sent back to the drug rehabilitation centre (“the Centre”) in Vietnam, where he would be beaten severely or be killed.

5.  According to the applicant, he was arrested on 22 May 2015 for taking drugs.  On the following day, the applicant was transferred to the Centre.  He claimed to have been tortured and brutally beaten by 7-8 masked person during his first day at the Centre.  The applicant lost consciousness a number of times during the assault and he sustained injuries to his head, hands and legs.  He bribed an officer at the Centre, who then escorted him to the hospital and left him there.  The applicant did not seek medical treatment at the hospital, but went to see a quackery who gave him some plasters and medicine.

6.  Thereafter, the applicant went into hiding at the foot of a hill about 5 km from the Centre.  As he was scared to be caught and sent back to the Centre, he decided to leave Vietnam.  He left for China illegally on 16 August 2015 and eventually sneaked into Hong Kong on 18 August 2015.

7.  While in Hong Kong, the applicant maintained contact with his family once a month.  During their last conversation, his family told him that they were fine and nothing extraordinary had happened.  The applicant was of the view that he could not seek protection from the police because he was wanted by them.  He also considered internal relocation not viable because the police would be looking for him everywhere within Vietnam.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 20 January 2017 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the identities of the masked persons who assaulted the applicant could not be confirmed.  Even if they were the staff members at the Centre, their behavior could not be inferred that the Vietnamese government was involved in the matter [11].

11.  In any event, (i) state protection would be available to him [12]-[15]; (ii) internal relocation would be viable [16]-[20] and (iii) the applicant’s case therefore failed to meet any of the requirements under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[32] or Torture risk [33]-[35].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 3 December 2018, the Board conducted a hearing.

13.  The Board was of the view that Vietnamese government had a proper legal basis to retain someone like the applicant in the Centre for administrative mandatory treatment [33].  The applicant left Vietnam simply to escape liabilities from his breach of the law and there was no evidence showing that the law was improperly administered or that the punishment was excessive [45].  In any event, given that the applicant was able to visit a quackery, the injury he suffered could not be too serious [34].

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [15]-[26], [32]-[46].  Furthermore, the country of origin information showed that the Vietnamese government had taken steps to improve the drug rehabilitation process [28]-[31] and that internal relocation would also be available [47]-[49].

15.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

16.  The applicant has filed Form 86 dated 25 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant says he disagrees with the decision of the Board.  If he returns to Vietnam, his life will be in danger.

DISCUSSION

18.  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).

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

20.  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.”

21.  The Board came to its conclusion of the facts it found after assessment of the evidence.  The applicant has not raised any valid reason to challenge the Board’s Decision.

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

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

DISPOSITION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.