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

HCAL 357/2021

[2021] HKCFI 2196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 357 of 2021

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.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 27 March 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  His application filed on 16 March 2021 is late.  I shall deal with this issue below.

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall 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 citizen of Vietnam.  He came to Hong Kong on 30 December 2014.  On 12 January 2015, he surrendered to the Immigration Department.  He lodged non-refoulement claim with the Immigration Department by written representations dated 6 April 2019 and 12 May 2019.

5.  He claimed that if refouled, he would be harmed or killed by his creditor from whom he had borrowed 1.5 billion Vietnam currency and he was unable to repay.  Also, he said he would be arrested by Vietnamese government if he returned to Vietnam.  He borrowed money for setting up a farm rearing cattle and growing trees.  One night in June 2018, he had troubles with the soldiers because the soldiers were slaughtering his cows.  He had a dispute with the soldiers.  He picked up a machine gun on the ground left by the soldiers and fired a few shots at the sky.  He was taken by the soldiers into the camp where he was tortured by the officer and his subordinates.  They assaulted him and hanged him upside down.  He was released.  He had complained to police.  The creditor had threatened to harm him if he was unable to pay off his debt.  His brother-in-law who worked in police department advised to him leave Vietnam as police was going to arrest him for theft and resisting the soldiers’ arrest.  He saw from the television that he was wanted by police.  Details of the story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

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

a.  risk of torture under Part VII C 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 August 2019 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by the creditor if he returned to Vietnam was assessed to be low [13]; that state protection was available to him [21]; that the soldiers’ acts did not represent the state and they might be investigated by the authority and he might also have a fair trial for the alleged charges in Vietnam [21]; and that internal relocation was an option open to him [24].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 2 January 2020.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)  His ill-treatment by the soldiers and the creditor had not reached the threshold for torture under BOR 3 and his claim under BOR 3 risk failed. [63]

(2)  The ill-treatment he alleged did not satisfy the conditions under the Ordinance and the chance that he might be tortured if he returned to Vietnam was rather remote. [74-76]

(3)  There was no evidence in support of his claim on Persecution risk. [73]

(4)  His case had nothing to do with BOR 2 risk. [77-79]

(5)  Internal relocation was an option open to him. [87]

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 16 March 2021 to apply for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he had been detained for months and he wanted a review.

DISCUSSION

12.  As mentioned in paragraph 1, this application is late.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27, the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall first consider the merits of the applicant’s case.

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

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

15.  His ground in support of this application does not assist his application.

16.  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.

17.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to extend time for the applicant to apply for leave to apply for his intended 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