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HCAL 1006/2021
[2023] HKCFI 3066
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1006 of 2021
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Vu Truong Son |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 3 June 2021 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, his application is dealt with on the papers.
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 illegally on 25 December 2019. On 25 August 2020, he surrendered to the Immigration Department. On the date of surrender, 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 Vu Thi Hang (“VTH”) and the creditor’s husband, Van.
5. In brevity, the applicant borrowed a loan from VTH in June 2018 for his restaurant business. However, since September 2018, his business had been deteriorating. By the end of 2018, he had been defaulting the loan payments. In May 2019, VTH started to chase for repayments. In this incident, the applicant was assaulted by around twenty gangsters. Half a month later, Van and some gangsters visited the applicant and threatened him. Feared that Van would kill him due to Van’s previous murder conviction and triad background, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 25 January 2021 by the Director (the “Director’s Decision”).
The Director’s Decision
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 Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the past events failed to show that VTH and Van had the intention to seriously harm or even kill him [11]-[12]; (ii) state protection would be available to him [13]-[15]; and (iii) internal relocation was also a viable option [16]-[18].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 11 May 2021, the Board conducted an oral hearing for his appeal, during which he testified [4].
9. The Board recapped the applicant’s claim and his personal background [6]-[19]. Having considered all the evidence, the Board cast doubt on the applicant’s credibility [32]. In particular, the Board found that the delay in lodging the non-refoulement claim undermined his credibility; that the alleged incidents failed to reach the requisite level of severity; that his evidence about the details of the loan was inconsistent; that he had no knowledge of whether the creditor was still looking for him; that his evidence on the difficulty of relocation contradicted the country of origin information (“COI”) and that he did not take steps to report to the police [32]. In these premises, the Board concluded that he was not a witness of truth [33].
10. In assessing the individual grounds, the Board found that the injuries sustained failed to attain a minimum level of severity [35]-[39]; that there was no state involvement [40]-[44]; that the COI supported a finding of availability of state protection [45]-[46]; and that internal relocation was a viable option [65]-[69].
11. For the above 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 16 July 2021 for leave to apply for judicial review of the Board’s Decision.
13. In the applicant’s affirmation in support of his application, the applicant said that if he returns to Vietnam, he will be tortured or killed by his creditor and gangsters as he is unable to repay the loan.
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 had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision.
18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
19. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 12th day of December 2023
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 12/12/2023
Vu Truong Son
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/12/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17617/21/2/23/V2372
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 876/20 (Formerly RBCZ 10749/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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