BUI DINH LAP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1707/2019

[2024] HKCFI 1911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1707 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 3 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing.  However, he was absent on 22 May 2024 for the hearing without prior notice to the 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 60, is a Vietnamese.  He entered Hong Kong illegally on 1 July 2015.  He surrendered to the Immigration Department on 6 July 2015 and he lodged a non-refoulement claim on 24 March 2017.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his daughter’s boyfriend (“Mr Nguyen”) because he was unable to repay the debts owed to him by his wife and he also rejected Mr Nguyen’s proposal of marrying his daughter to set-off the debt.

5.  According to the applicant, in 2012, his wife borrowed a loan from Mr Nguyen, who had triad background and was a drug addict, to invest in a fish breeding business.  Subsequently, all the fish died and the applicant’s wife was unable to repay the loan.  Mr Nguyen proposed to marry their daughter to set-off the loan.  Her daughter however did not want to marry Mr Nguyen given his background and she came to Hong Kong in October 2013.  When Mr  Nguyen learnt that the applicant’s daughter had fled to Hong Kong, he was furious and beat up the applicant’s son.  In November 2013, the applicant’s son also travelled to Hong Kong.  Subsequently, Mr Nguyen and another man came to the applicant’s home to torture him by putting his head into the pond.  Mr Nguyen then threatened to beat him to death unless he repaid the loan or let his daughter marry him.  The applicant reported the matter to the police, but the police refused to accept the case because they regarded it as a private matter.

6.  Between the end of 2013 and July 2015, Mr Nguyen came to the applicant’s house every two to three months, demanding loan repayment and the whereabouts of his son and daughter.  Eventually, the applicant’s wife and the applicant also came to Hong Kong in June 2015 and July 2015 respectively.

7.  The applicant was of the view that the police could not offer him protection because they did not accept his case when he reported to them previously.  The applicant also considered internal relocation not viable because he lacked the financial resources and he worried that Mr Nguyen would be able to find him.

8.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 22 January 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the absence or low intensity of past ill-treatment from Mr Nguyen indicated a small future risk of harm upon his return to Vietnam [13]-[14]; (ii) there was no evidence of state involvement [15]; (iii) state protection would be available to him [16]-[19]; (iv) internal relocation would be viable [20]-[21] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[34] or Torture risk [35]-[38].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 20 March 2019, the Board conducted an oral hearing.

12.  The Board were of the view that the applicant’s claims were credible and consistent [68].  It accepted that the applicant’s wife had taken out a loan from Mr Nguyen in 2012 as investment into their business and that when the business failed, Mr Nguyen asked to marry the applicant’s daughter in return to set-off the loan.  The Board also accepted that upon the applicant’s daughter refusal to the marriage proposal, Mr Nguyen started harassing the applicant and his family.  Furthermore, it also accepted that the matter was reported to the police, but they took no action as they considered it a personal dispute [69]-[70].

13.  Yet, the Board considered that internal relocation would be a viable option for the applicant [73]-[74], so that he would not face a real risk of harm upon return to Vietnam [75].  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [12]-[16], [77]-[81], BOR 2 and BOR 3 risk [17]-[22], [82]-[90] or Persecution risk [23]-[31], [91]-[94].

14.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

15.  The applicant has filed Form 86 dated 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant enclosed a copy of the Board’s Decision and said that he would be seriously harmed or killed if he returned to Vietnam, without setting out any specific ground.

DISCUSSION

17.  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).

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

19.  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.”

20.  The Board did not challenge the applicant’s evidence.  However, having considered the evidence and for the reasons given above, the Board concluded that there will be no real risk of him being harmed or killed by Mr. Nguyen if he returns to Vietnam and internal relocation will be a viable option open to him.

21.  There is no valid reason from the applicant to challenge the Board’s finding of the facts.

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

CONCLUSION

23.  I refuse to grant leave to 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