NGUYEN VAN TRUONG v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 777/2018

[2020] HKCFI 1629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 777 OF 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Application for leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.  The applicant, born in 1971, is a national of Vietnam.  He arrived in Hong Kong on 17 February 2014 unlawfully and lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [9-11] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his creditor, Nam, as he had borrowed from him around 900 million Vietnamese Dong and he had no money to repay.  According to the applicant, in late 2012, Nam and his followers visited his home in Hanoi and threatened to kill the applicant who was in Hai Phong at the time.  In mid-2013, five to six strangers came to find the applicant in a hostel in Hai Phong, they threatened to cut his feet and kill him if he did not repay the loan to Nam.  On 16 February 2014, the applicant left Vietnam for Mainland China and sneaked into Hong Kong later.

The Director’s decision

4.  By a notice of decision dated 29 May 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.  The Board determined the appeal without a hearing.  By a decision dated 5 March 2017 (sic), the Board rejected the appeal/ petition on all applicable grounds, confirming the Director’s decision.

6.  The Board’s main reasons for rejecting the non-refoulement claim were essentially that: it was only a private money dispute and there was no evidence of ill-treatment by Nam that attained the requisite degree of severity [51]; he did not report to the police or authorities [33]; Nam at most intended to give some pressure [32]; nothing uneventful had happened to him since the claimed incidents in mid-2013 before he left Vietnam [88]; the actual or perceived harm from Nam was not imminent, and the future risk he suggested was only his speculation [35].  Having considered all the relevant circumstance as he claimed, the Board concluded that the applicant failed to show any real risk of harm or ill-treatment, if refouled to Vietnam.

7.  Furthermore, the Board also found that internal relocation was viable and not unduly harsh for him [89].

Application for leave to apply for judicial review

8.  The applicant filed a Form 86 on 2018 for leave to apply for judicial review of the decision of the Board.  He did not request an oral hearing.  The application is therefore considered on the papers.  Clarifications have been made with the officer of the Board confirming that the date of the Board’s decision should be 5 March 2018 instead of 5 March 2017. The application is treated as filed within time.

9.  In the Form 86, the applicant did not state any grounds of judicial review.  In his supporting affirmation, he stated that he was afraid he would be killed by his creditor.  His brothers in Vietnam had agreed to help him to repay the debt.  He would voluntarily leave Hong Kong when the situation is better.  He stressed “I want my life to be protect by BOR 3”.

Discussion

10.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

11.  As the Director’s decision has been superseded by the Board’s decision, the Director’s decision is not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

12.  By a letter dated 11 May 2020, the Court invited the applicant to submit information including any submissions that he would like to make.  Since then, he has made no response or submission to the Court.

13.  In the present case, the Board in fact found that on the accounts of primary facts claimed by the applicant, he would notface any real risk of harm, if refouled.  It further found that internal relocation was a viable option for him.

14.  As mentioned, assessment of evidence and the risk of harm are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so. 

15.  The Board did not hold an oral hearing. I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277.  While there is no absolute right to an oral hearing, the question of whether an oral hearing should be afforded must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision in terms of its outcome and consequence, the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: per Cheung CJHC (as he then was) in paragraph 26 of his judgment for the Court.

16.  The applicant stated no grounds of the judicial review in Form 86.  Even in his affirmation, he did not pinpoint at anything to suggest how the Board erred in the public law sense.  Nor was there any challenge with regard to procedural regularity and fairness.  Bearing in mind that the applicant personally attended the screening interview with the immigration officer and the Board basically accepted the version of facts as advanced by the applicant, I do not find the course adopted by the Board to be irregular or unfair.

17.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them, nor any failure to apply high standards of fairness.

Conclusion

18.  For the reasons given, there is no realistic prospect of success in the applicant’s intended application for judicial review.  I therefore refuse the application for leave to apply for judicial review.

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