DOAN VAN SON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2181/2018

[2022] HKCFI 2739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2181 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 27 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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.

The applicant

4.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 10 October 2014 and was arrested by the police on the same day.  On 17 October 2014, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Bui Van Huy (“Bui”).

5.  According to the applicant, he borrowed a loan from Bui in July 2014 for his gambling business.  However, a month later, his business deteriorated and he was unable to repay the loan.  Feared that Bui might chase him for repayments, the applicant escaped to another city.  He was informed by his family that Bui, together with six men, demanded for his whereabouts and threatened to kill him.  Eventually, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 August 2016 by the Director (the “Director’s First Decision”) and paragraphs 24 to 39 of the Board’s Decision.  

The Director’s Decisions

6.  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”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk on the basis that the level of risk of harm upon his refoulement was assessed to be low.  In elaboration, the Director found that (i) the applicant failed to provide any evidence on the loan as well as the interest payments.  He also failed to support his assertion that Bui was a gangster.  Alternatively, Bui and his men had never harmed the applicant [13]; (ii) he only received Bui’s threats when he escaped to another city [14]; (iii) the applicant’s parents were only inquired but not harmed by Bui [15]; (iv) his dispute with Bui was private in nature [16]; (v) state protection would be available to him [17]-[18]; and (vi) internal relocation was also a viable alternative [19].

8.  For reasons set out in the Notice of Further Decision dated 6 September 2017, the Director also found that the applicant had not established any risk of harm of his BOR 2 rights being violated if refouled and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

9.  For simplicity, the Director’s First Decision and the Director’s Second Decision are referred to collectively as the “Director’s Decisions”.

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board.  On 21 May 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence [23].

11.  Having considered the evidence, the Board made the following findings. First, the applicant’s dispute was purely a private matter [44].  Secondly, after assessing the country of origin information, the Board considered that state protection was sufficient [45]-[52].  Thirdly, the applicant had never suffered any physical harms [61] and, finally, there was no evidence that the applicant was a target of the Vietnamese authorities [72].  For these 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 10 October 2018 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 returned to Vietnam, he would be killed by his creditor or his underlings because he had no money to repay the creditor.

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 Decisions 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.  Those grounds in paragraph 13 above are not valid reasons to challenge the Board’s Decision. They are the facts not accepted by the Board.

18.  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.

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