HOANG MINH THAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1638/2019

[2024] HKCFI 2241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1638 OF 2019

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BETWEEN

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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 6 September 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 32, is a Vietnamese. He entered Hong Kong illegally from Mainland China on 25 June 2015. He surrendered to the Immigration Department on 2 July 2015 and made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had triad connections, because he failed to repay a loan to him. On 14 August 2016, the applicant was arrested by the police for using a forged identity card and contravening the prohibition of taking employment and establishing business. He was convicted of the said offences and was sentenced to imprisonment of 15 months on 13 September 2016.

5.  According to the applicant, he had been addicted to football gambling since about early 2013. One of his friends introduced the creditor to the applicant and he borrowed money from him for gambling. In November 2013, the gambling losses put the applicant deeply in debt and he could no longer afford paying the bi-monthly interest to the creditor. The creditor was dissatisfied with the applicant’s inability to pay interest and demanded him to repay the principal. However, since the applicant’s job as a porter at a coal mine was unstable, he was unable to comply with the creditor’s demand.

6.  In or about February 2014, five of the creditor’s underlings visited the applicant’s home and verbally threatened him. In or about May 2014, ten of the creditor’s underlings visited the applicant’s home again and assaulted him with fists and kicks. The applicant lost consciousness and was taken to a hospital. He suffered from bruises as well as swellings all over his body and his front teeth were severely broken as a result. The applicant was hospitalised for three months, but he did not report the assault to the police.

7.  About 2-3 days after discharge from the hospital, the applicant went to Hanoi where he worked for about 6 months as a waiter at a food stall operated by his friend’s parents. During his stay in Hanoi, he was informed by his parents that there was a group of men coming to his house to enquire his whereabouts from time to time. Thereafter, upon introduction by his friend, the applicant went to Ha Long where he worked as a road-paving worker for a few months. While in Ha Long, his parents told him that the creditor and his underlings continued visiting his house and made threats against him. In about June 2015, through the arrangement of an agent, the applicant left for Mainland China and eventually sneaked into Hong Kong on 25 June 2015.

8.  The applicant maintained contact with his family since his arrival in Hong Kong. He was informed that the creditor and his underlings would still come to harass his family members and caused damage to his house on some occasions. His family therefore told him not to return to Vietnam.

9.  The applicant considered internal relocation not viable because the creditor might be able to locate him anywhere within Vietnam given his triad connection. Furthermore, he also lacked the financial means for relocation. The applicant was also of the view that he could not seek protection from the authorities because the creditor had good connection with the police.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 31 July 2017 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment from the creditor indicated a small future risk of harm upon his return to Vietnam [12]; (ii) state protection would be available to him upon his return [13]-[17]; (iii) internal relocation would be viable [18] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[25], Persecution risk [26]-[31] or Torture risk [32]-[34].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 11 April 2019, the Board conducted a hearing.

14.  The Board found the applicant’s delay in seeking non-refoulement protection unfavourable to his credibility given that he had wandered for about a week before surrendering himself [24]-[25]. Upon considering the applicant’s evidence, the Board did not accept that (i) the applicant was indebted to the creditor [28]-[37]; (ii) the applicant was assaulted due to his inability to repay the loan [38]-[41] and (iii) the creditor had extensive power and network in Vietnam or that he had the resources to locate the applicant anywhere within the country [42]-[45].

15.  Based on such findings, the Board found the applicant not credible and rejected his account of events [48]-[52]. They concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [53]-[81], [110], Torture risk [82]-[91], [111] or BOR 2 and BOR 3 risk [92]-[100], [112]-[113]. In any event, state protection and internal relocation were also available to the applicant according to the country of origin information [46], [66]-[78], [101]-[109].

16.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

17.  The applicant has filed Form 86 on 14 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, the applicant said that he is insolvent. If he returns to Vietnam, his life will be in danger. Other than this, he has raised no specific ground.

DISCUSSION

19.  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).

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

21.  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.”

22.  For the reasons given above, the adjudicator did not accept the applicant’s evidence in support of his claim. The applicant is unable to raise any valid reasons to challenge the Board’s finding of the facts.

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

CONCLUSION

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