DO TUAN ANH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 202/2021

[2021] HKCFI 2801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 202 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 5 February 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (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 (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

4.  The Board’s Decision was written in Chinese.  As the applicant wrote his affirmation in English, I shall write my decisions here in English.

The applicant

5.  The applicant is a citizen of Vietnam.  He came to Hong Kong illegally.  On 7 August 2015, he was arrested by police.  He lodged non-refoulement claim with the Immigration Department on 1 September 2015.  He withdrew his application on 7 January 2020.  However, he was charged with gaining employment in Hong Kong without authority of the Director.  On 6 April 2020, he was sentenced to 15 months’ imprisonment.  He submitted his non-refoulement claim whilst he was in prison.

6.  He claimed that if refouled, he would be harmed or killed by his creditor, from whom he had borrowed 1400 million Vietnamese currency for gambling.  He lost and was unable to repay his debt.  The creditor had sent his underlings to demand repayment.  They had assaulted him, vandalized his home and threatened to kill him and his family.  He tried to live in other places.  But he was located by his creditor and was beaten up.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

7.  The Director had considered his application in relation to the following risks:

a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 14 October 2020 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed if he returned to Vietnam was assessed to be low [11]; that state protection was available to him [17] and that internal relocation was an option open to him [22].

The Board’s Decision

9.  The applicant appealed against the Director’s Decision.  He appeared before the Board on 20 January 2021.

10.  By the Board’s Decision, the Board rejected his appeal.  The Board affirmed the Director’s Decision.  The Board further found that his case was a private monetary dispute, which the state was not involved [55].  His case did not involve the BOR 2 risk [59].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 22 February 2021 to apply for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he said he did not agree with the Board’s Decision, which is grossly unfair and unjust.

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 its 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, CA.  §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.… …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.  He raised no valid ground to challenge the Board’s Decision.  The Board was entitled to reach it decisions above.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.   Accordingly, I dismiss his application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1