HOANG VAN NANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1319/2019

[2024] HKCFI 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1319 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.  The applicant applies for leave to apply for judicial review of the Decision dated 10 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), his application is dealt with on paper.

The applicant

3.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 22 March 2015.  On 24 March 2015, 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 Tran Duc Huynh (“TDH”).

4.  In brevity, the applicant entered into a loan agreement with TDH on 20 May 2014 for the operation of his delivery business.  He was able to repay the monthly interest until January 2015.  One day in January 2015, his driver and him had a car accident, in which both of them were injured and his truck destroyed. He was required to afford the driver’s medical expenses and also the compensation for the damaged goods.  The applicant had left with no money to fix the truck or pay the monthly interest. 

5.  In February 2015, his creditor started chasing for repayment.  He threatened to kill the applicant if the applicant failed to settle the loan by early March 2015.  The applicant was also assaulted by the creditor in one incident but he did not sustain serious injuries.  Out of fear, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 8 of the Notice of Decision dated 28 August 2017 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:

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

(2)   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”);

(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”);

(4)   risk of violation of the rights under Article 7 of Section 8 of the HKBOR (“BOR7 risk”) and

(5)   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 low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to him [17]-[21]; and (iii) internal relocation was a viable option [22]-[26].  Meanwhile, the Director also found that the applicant’s credibility was in doubt [27]. 

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 19 March 2019, the Board conducted an oral hearing for his appeal.

9.  The Board recapped the applicant’s claim and his personal background [22]-[24].  Having considered the evidence, the Board made the following findings.  It noted that the applicant was evasive in answering even the straightforward questions and was unable to provide clarifications or details [30]. 

10.  In particular, the Board observed that the applicant attempted to avoid questions on the details; that the applicant confirmed that he did not have mental problems; that he could not produce the loan documents; that he was evasive as to when he defaulted the loan; that he was inconsistent as to which hospital they were sent to after the car accident; that he could not produce any documents as to the car accident or the subsequent hospitalization; that he was evasive as to why he could afford to pay the medical expenses and the damaged goods; that it was unreasonable that he did not have any insurance policy; that he was inconsistent as to the number of people who assaulted him; that he failed to explain why the creditor did not kill him if the creditor was minded to do so; that he failed to mention the assault in the non-refoulement claim form; that he claimed at the hearing that he did not seek medical treatments; and that his claim under BOR7 risk was not substantiated [30].  

11.  In light of these inconsistencies, the Board found that the applicant’s claim was not credible.  Meanwhile, the country of origin information indicated that he could relocate to other area to negate the risk of harm, if any [33]-[37].  Even taking the applicant’s claim to the highest, the Board found that the nature of the assault and the degree of the injuries sustained indicated that the creditor would not torture or even kill the applicant; that the creditor was not as powerful as claimed; that the applicant could seek state protection; and that there was no state involvement [41]-[43].  In any event, internal relocation was a viable option [58]-[60].

12.  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

13.  The applicant has filed Form 86 dated 16 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant attached a copy of the Board’s Decision without setting out any specific ground.

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, §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.  There is no valid reason from the applicant to challenge the Board’s Decision.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  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