LUU VAN PHONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 188/2019

[2022] HKCFI 1318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 188 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 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 18 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (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 (“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 national of Vietnam.  He last entered Hong Kong illegally on 5 July 2013 and was arrested by the police on the same date.  On 17 February 2014 and 18 February 2014 respectively, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be arrested, harmed or killed by (i) the Vietnamese police; and (ii) his creditor.

5.  According to the applicant, he borrowed a loan from Nguyen Van Hung (“Hung”) with the aim to repay his sister.  Insofar as the claim against the Vietnamese police was concerned, the applicant stated that, in 2011, he purchased a t-shirt stamped with the words “H.S.T.S.L.V.N”, meaning that “Hoang Sa Thuong Sa La Viet Nam” (the islands belonged to Vietnam).  The next day, the applicant, while wearing the t-shirt, was arrested by some men in blue.  One of them showed him the police badge.  He was taken on a vehicle, inside which he was slapped and assaulted.  Subsequently, he was detained in the Hoan Kiem Lake police station where he was tortured for information as to whether he belonged to an anti-government organization called Viet Tan Hai Ngoai (“VTHN”).  The applicant was detained there for two months, during which he claimed that the police tortured and forced him to admit that he belonged to VTHN.

6.  Afterwards, the applicant was taken to Quang Ninh police station where he was again repeatedly tortured and interrogated with the same question. Before the Director, the applicant claimed that his injuries were recovered half a month after his release.  In August 2011, he was released from the police station.  However, the police constantly harassed him.  In addition, he was threatened by Hung for the repayment of the loan.  Out of fear, he eventually fled to Hong Kong for protection.  During his stay in Hong Kong, he learnt that his daughter was injured by Hung.  Details of the applicant’s claim were set out at paragraph 8 of the Director’s Decision and paragraphs 24 to 69 of the Board’s Decision as described below.  

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     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”);

(3)     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

(4)     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”).

8.  By a Notice of Decision dated 18 November 2016 (“the Director’s Decision”), the Director refused the applicant’s claim. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low because (i) the alleged injuries failed to attain the requisite level of severity and certain material aspects of the applicant’s claim was unbelievable [17]; (ii) state protection was available to him [18]-[23]; and (iii) internal relocation was an option open to him [24]-[28]. 

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 5 October 2018 for his appeal but the applicant was absent.  With reasonable explanation, the Board rescheduled the hearing to be on 23 November 2018, during which the applicant gave evidence before the Board.

10.  Before assessing the applicant’s claim on individual grounds, the Board considered the issue of credibility and made the following findings:

(1)     It refused to accept the applicant’s story that he spent half of the loan from his sister on the fishing business.  The Board found that the applicant’s claimed business model was absurd and inconsistent with the behavior of someone who claimed to have sixteen-year experience in relevant area [77];

(2)     It also cast doubt on the Vietnamese police’s way of monitoring him upon his release from Quang Ninh police station [78]-[79]. 

(3)     On these premises, the Board concluded that the applicant’s intention to seek protection in Hong Kong was suspicious [80]. 

11.  The Board then proceeded to consider the applicant’s claim under each applicable ground:

(1)     For the ground of Persecution risk, the Board found that (i) the dispute with Hung was a private one without state involvement [82], and (ii) based on the country of origin information (“COI”), the Board acknowledged that arbitrary arrest and detention remained a problem [86] but also found that Vietnam had tried the best to combat corruption [89]-[90]; improve its judicial systems [91]-[93]; [95]-[99]; and regulate illegal debts [94].  Thus, the applicant’s claim under this ground failed;

(2)     For the ground of BOR2 risk, the Board also found that there was no evidence to show that the death sentence would be imposed on the applicant and thus his claim under BOR2 risk failed [104];

(3)     For the ground of BOR3 risk, the Board found that (i) state protection was available to the applicant [107], (ii) the applicant’s daughter was harmed by the creditor not because of the failure to repay the loan but the refusal to tell the creditor the applicant’s whereabouts [108]; and (iii) it only took the applicant half a month to recover from the alleged injuries sustained in the police stations and he had never sought medical treatments [109].  Thus, this ground also failed;

(4)     For the ground of Torture risk, the Board considered that there was no evidence showing that the applicant was targeted by the Vietnamese government and, in light of the COI, the applicant’s claim under this ground also failed [118]-[119].

12.  For the aforesaid reasons, the Board dismissed the applicant’s appeal.     

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 21 January 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, he reiterated his story in support of his claim that he was harassed by the police of Vietnam.

DISCUSSION

15.  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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.  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.”

18.  The applicant has not raised any valid ground to challenge the Board’s Decision.

19.  This Court observes that the Board acknowledged that arbitrary arrest and detention remained a problem. However, this issue does not fall within the parameter of persecution as the applicant, as according to himself, is not affiliated with any political party. His complaint falls within police harassment, for which he may have recourse by making complaints to the relevant authority. The torture, as he described by the police officers, has not attained the threshold for torture or BOR 3 risk.

20.  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.

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

CONCLUSION

22.  I therefore refuse to grant leave for 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