PHAM VAN DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1184/2019

[2023] HKCFI 2631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1184 of 2019

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.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 11 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 is a national of Vietnam.  He entered Hong Kong as a visitor on 22 November 2013 and was permitted to stay until 29 November 2013.  He did not depart and had overstayed since 30 November 2013.  On 2 December 2013, he surrendered to the Immigration Department for overstaying. On 17 March 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Vietnamese government for various offences he had committed.

5.  According to the applicant, it was a mandatory requirement in Vietnam for the male citizens, who were 18 years or older, to be enlisted for a compulsory military duty for three years.  In October 2013, the applicant inquired of the possibility to suspend the said military duty on the basis of his university education.  The city committee did not provide any affirmative answer but asked him to wait for a decision.  On 3 November 2013, the applicant received a summon from the Vietnamese government to conduct a medical examination for the military duty.  He then went to the city committee and informed them of his decision not to participate in the examination.  He was yelled at by the city committee officers.  On 6 November 2013, the applicant went to the city committee again and asked to adjourn the performance of his military duty.  He was assaulted by the officers for half an hour.  On the same day, the applicant visited the committee again with his four classmates.  To express their disappointment, they ripped the posters off the wall and burnt the national flag.  Afterwards, they fled the scene. 

6.  On 7 November 2013, the applicant’s parents told him via telephone that the police visited them, asking the applicant’s whereabouts.  He also learnt that the police issued summons for his failure to perform the military duty and for his conduct of destroying the national posters and flag.  Feared that he would be arrested for the aforementioned offences which could attract death penalty and that he would not receive fair trial because of his feud with the city committee officials, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 28 December 2016 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 dismissed the applicant’s claim.  In elaboration, the Director found that (i) considering the past events, it was unlikely that he would be harmed or even killed by the Vietnamese authorities [12]; (ii) state protection would be available to him [13]-[16]; and (iii) it was not accepted that the applicant’s claimed offences would attract a death sentence and, in any event, the country of origin information (“COI”) showed that he could receive a fair trial [17]-[18]. 

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 18 February 2019, the Board conducted an oral hearing for his appeal, during which he answered the Board’s inquiries [4].

10.  Having considered the evidence, the Board found that there was no evidence of severe pain and physical or mental suffering which reached the minimum level of severity [7]-[8]; that the applicant fled Vietnam to avoid being arrested and the due process of the law and thus he was a fugitive of the law [10]; and that the penalty of his alleged offences, as stated in the COI only had a maximum sentence of three years [10];[13].

11.  For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.  The applicant has filed Form 86 dated 3 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant said if he is refouled to Vietnam, his life will be in danger. He is afraid that his debtor and his subordinates could have inflicted more serious harm or even kill him because he is insolvent.

DISCUSSION

14.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  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.”

17.  The Board, for the reasons given in paragraph 10, supra dismissed his appeal.

18.  There is no valid ground from the applicant to challenge the Board’s Decision. In fact, he did not owe any money to a creditor. There is no reason why he should fear the creditor or his subordinates.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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