BUI VAN TOAN v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2437/2018

[2020] HKCFI 1724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2437 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

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 13 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

3.  The applicant is a Vietnamese national. He came to Hong Kong on 26 August 2015 illegally from China. He surrendered himself to the Immigration Department on 1 September 2015. He lodged his non-refoulement claim on 18 November 2015.

4.  He claimed that if refouled, he would be harmed or even killed by his creditor, Tran Van Yen as he was unable to repay the loan.

5.  In February 2000, he borrowed 500 trillion Vietnam currency from the creditor. [This amount was ratified by the applicant before the court to be 500 million.] He was unable to pay the interest or the loan to the creditor. Rather strangely, the creditor and his subordinates did not push him for payment hard between 2000-2005 and they even disappeared for the next three years. From 2008 to 2014, they re-surfaced and hard pushed for repayment of the loan, threatening to kill him and his family. They had even set fire on his home in 2014. He had to flee to Hong Kong.

The Director’s Decision

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

a.risk of torture under Part VIIC 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”).

7.  By Notice of Decision dated 14 December 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he alleged if he returned to Vietnam was low [11]; that state protection was available to him [16] and internal relocation was an option open to him [26]. His claim under BOR2 risk was not established.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. The Board considered that it was not necessary for the applicant to appear before it as it did not require any clarification from him and that it did not require any other materials for it to assess his appeal.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and found that the applicant had not sought protection from the state. From the country of origin information, Vietnamese government has the determination and power to combat triad loan-shark activities. He had failed to prove with evidence that the loan-shark had burned down his house. Therefore, he had not discharged the burden of proof on the risks he had raised. See §§41-69 of the Board’s Decision. Further, it found that internal relocation was an option open to him [72-78].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 2 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he simply recited the facts he relied upon in support of his case.

DISCUSSION

13.  The applicant appeared before me. He confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board. His lawyer had explained the Director’s Decision to him. There was no hearing by the Board. The Board dealt with his appeal on paper. The interpreter of the Board had, over the telephone, explained the Board’s Decision to him. He had no comments on the Board’s Decision.

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave to the applicant to apply for 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