NGUYEN TRUNG SON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2136/2019

[2024] HKCFI 3249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2136 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 11 July 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 did not ask for a hearing. 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 42, is a national of Vietnam. He was arrested by police for illegally entering Hong Kong. He was referred to the Immigration Department. He admitted that he left Vietnam for China on 3 November 2015. On 5 November 2015, he sneaked into Hong Kong. He lodged his non-refoulement claim on 28 November 2015 and 15 December 2015 respectively for the reason that, if refouled, he would be harmed or killed by his creditor because he was unable to repay the loan.

5.  According to the applicant, in 2013, he had borrowed 120 million Vietnamese currency from the creditor for his wood business. He was able to pay interest on the loan initially. In August 2015, he became bankrupt. His creditor sent his subordinates to his home for repayment of the loan. On the first occasion in August 2015, the creditor’s subordinates allowed him one month to repay the loan. In September, the creditor’s subordinates came again and they assaulted him with wooden sticks and wooden mallets. He sustained injuries on his head, back and calf. He did not seek medical treatment from hospital. Nor did he report to police, knowing that the creditor’s uncle was well connected with the police. He moved to live in his friend’s place. His wife was able to sell the remaining wood materials and obtain some money for him to leave Vietnam for Hong Kong. Therefore, he came to Hong Kong. He consider that state protection is not available to him as the creditor’s uncle has connection with the police and internal relocation is not feasible as the creditor has a wide network.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 February 2017 (“the Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 2, BOR 3 risk and Persecution risk. The Director found that the ill-treatment he received from the creditor was far below the level of severity as required under BOR 3 risk [11]; if he returns to Vietnam, state protection will be available to him [12]; and internal relocation is a viable option [12]-[13].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. The Board conducted a hearing on 6 June 2019. Having considered the evidence, the Board agreed with the Director. It came to the conclusion:

“29. The Appellant has not suffered serious ill-treatment or serious harm which would place him at any substantial future risk of Persecution. Furthermore the COI shows reasonability availability of State Protection from such harm. Furthermore, the alleged assault, and future risk thereof, had not been and will not be launched under any “Conventional Category. …

30. Further and in any event, he can safely live in Vietnam, at least other than his home locality in northern Vietnam, which is another independent reason the appeal under “Persecution Risk” fail.

35. For numerous and independent reasons the Appellant fails to establish a case for non-refoulement whether under the principles of Torture or BOR 3 or BOR 2 or Persecution. The appeal is dismissed, and the decision of the Immigration Officer, dated 24 February 2017, is hereby confirmed.”

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

10.  The applicant has filed Form 86 dated 26 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, the applicant attached a copy of the Board’s Decision, but he did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

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

14.  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.”

15.  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.

16.  This Court considers that the Board may have exaggerated the reasons against the applicant, such as when the adjudicator said,

“For numerous and independent reasons the Appellant fails to establish a case for non-refoulement whether under the principles of Torture or BOR 3 or BOR 2 or Persecution.”

17.  However, such exaggeration does not adversely impugn the Board’s Decision or advance the applicant’s case.

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

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

DISPOSITION

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