LE VAN TRUYEN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2279/2019

[2024] HKCFI 3663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2279 of 2019

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 oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 2 August 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a Chinese decision of the Director of Immigration (“Director”) dated 28 December 2017 (“Director’s Decision”) rejecting the applicant's non-refoulement claim.

2.  In Form 86, the applicant named the Board and the Director together as the proposed respondent(s). As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  Since the Board’s Decision and the applicant’s Form 86 and the supporting affirmation are in English, it is more appropriate to use English in this Form CALL-1.

4.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 3 December 2024. The applicant attended the hearing in person. After having heard from him, this court informed him that the decision would be reserved, and be sent to his updated address.

Background

5.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

6.  The applicant is a national of Vietnam. On 6 October 2014, the applicant surrendered to the Immigration Department for entering Hong Kong illegally. He claimed that he entered Hong Kong from Mainland China on 27 September 2014. Prior to this illegal entry, the applicant had on two previous occasions on 3 October 2001 and 3 May 2006 entered Hong Kong illegally under a different name of Le, Van Dan, and was repatriated back to Vietnam.

7.  On 6 October 2014, the applicant filed his non-refoulement claim covering all applicable grounds including the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on a fear of being harmed or killed by his moneylender and from the police who had issued a warrant of arrest for some trumped-up charges against him.

8.  The Director decided against the applicant’s claim on all the above applicable grounds. After having taken all the relevant circumstances into account including the past ill-treatment and the severity of his injuries that he sustained, the Director found that there were no substantial grounds in believing that there would be any real and substantial risk of him being harmed or killed by his creditor upon his return to Vietnam. The Director also did not find any evidence that the applicant would not have access to justice in relation to any outstanding matters with the police. The Director further referred to the country of origin information (“COI”) and found that as the dispute between the applicant and the creditor was private in nature without any official involvement, state protection and internal relocation alternatives were reasonably available. Hence, the applicant’s appeal to the Board.

9.  On 2 April 2019, the applicant attended a hearing before the Board. At the hearing, the applicant confirmed the truth and correctness of his evidence as contained in the hearing bundle and adopted it as the evidence for the appeal. After having considered the principles in relation to the assessment of evidence, the Board found that the applicant’s evidence was unreliable and incredible with numerous material inconsistencies and discrepancies between his evidence and the statements he provided in his refoulement claim. The Board concluded that the applicant’s evidence was not credible. The Board found that the summons and the arrest warrant issued by the police were forged documents. Notwithstanding the Board’s rejection of the applicant’s claim on credibility, it went on to consider the COI, and found that state protection and the option of internal relocation were available. The Board concluded that the applicant had failed to demonstrate that he should be entitled to non-refoulment protection on any of the applicable grounds, and it affirmed the Director’s Decision.

Legal principles applicable to judicial review

10.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

11.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and deposed that his life would be in danger if refouled because he was insolvent. At the hearing, this court had asked him whether he had any grounds he wished to submit in support of the Leave Application. The applicant stated that he would be arrested upon his return to Vietnam under the existing arrest warrant. He also informed this court that he had formed a new relationship with another refoulement claimant who gave birth to his son in 2017 out of wed-lock. He therefore wished to remain in Hong Kong to be with his son[6].

12.  It is plain that in neither the applicant’s submissions nor in the Leave Application was the applicant able to specify on what basis the Board was said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

13.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in great detail, the Board found that the applicant was not a credible witness, there was state protection available, and that internal relocation would also be viable. The Board’s findings of the applicant’s case in Vietnam was made with reference to the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.

14.  In the Leave Application, the applicant has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

16.  The Form 86 is amended on the court’s own motion.

17.  The Leave Application be dismissed.

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