LE TIEN DUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1669/2019

[2024] HKCFI 2765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1669 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 14 June 2019 of the Torture Claims Appeal Board/

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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, aged 44, is a Vietnamese.  He last entered Hong Kong illegally on 22 August 2016.  He surrendered to the Immigration Department on 23 August 2016 and made a non-refoulement claim on the same day.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”) because he failed to repay a loan owed to him.

5.  According to the applicant, in March 2011, he borrowed money from the creditor to start up a beauty salon.  The applicant was able to repay monthly instalments to the creditor initially.  By August 2011, his business started to deteriorate and he had to obtain permission from the creditor to delay the payment of instalments to end of 2011.  By December 2011, as the applicant was still unable to repay the instalments, he relocated to his friend’s home until January 2012 to avoid the creditor, after which he went back to his home.

6.  In May 2012 and October 2012, the creditor brought along five triad members to the applicant’s home demanding loan repayment.  The circumstances of the two debt collection incidents were identical, for which the applicant was assaulted with iron rods as well as fits and kicks.  The creditor also threatened to kill the applicant if he still failed to repay his loan.  The applicant suffered swellings all over his body as a result.  He did not attend hospital for treatment, but self-treated his wound.  Although the matter was reported to the police, they did not take any action.

7.  Between February 2013 and August 2014, the applicant hid in a forest to avoid the creditor.  Thereafter, as he still felt unsafe, he fled to China and subsequently sneaked into Hong Kong from Shenzhen for the first time in September 2014.  The applicant was arrested by the Immigration Department on 7 April 2016 and was repatriated back to Vietnam on 17 June 2016.

8.  The applicant went back to his home upon repatriation, where he stayed for two months.  Although the applicant did not encounter the creditor, he was still worried about his safety.  On 20 August 2016, upon arrangement by an agent, the applicant entered China illegally.  Eventually, he sneaked into Hong Kong from Shenzhen again on 22 August 2016.

9.  The applicant maintained contact with his parents while in Hong Kong, but he had no updates about the creditor.  The applicant was of the view that he could not seek protection from the police because he believed that they colluded with the creditor.  The applicant considered internal relocation not viable as well because he had no one to rely on elsewhere and he also feared that the creditor could find him by utilising his network.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 15 September 2017 (“the Director’s Decision”).

The Director’s Decision

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

(a)  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”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  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”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low frequency and intensity of past ill-treatment by the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as he claimed [13]; (ii) state protection would be available to him [14]-[18]; (iii) internal relocation would be viable [19]-[25] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[37] or Torture risk [38]-[41].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 30 April 2019, the Board conducted a hearing.

14.  During the hearing, the applicant gave conflicting evidence as to when he took out the loan from the creditor [12].  He was also unable to provide the operation details of his business and its profitability [15]-[17].  Moreover, the circumstances of the two debt collection incidents and the subsequent assault were inconsistent as well [18]-[21].

15.  The Board did not accept that the applicant was assaulted by the creditor due to his failure to repay the loan.  In any event, a number of years had elapsed and there was no evidence that the creditor was still after him [27].

16.  Given that there was no evidence of involvement by the Vietnamese government in the matter and the claimed injury failed to attain the requisite level of severity, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [29]-[42].  Furthermore, state protection and internal relocation would also be available according to the country of origin information [28], [43]-[47].

17.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

18.  The applicant has filed Form 86 dated 18 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

22.  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.”

23.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

24.  There is no reason that the Court should interfere with the Board’s finding of the facts.

25.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

26.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.