NGUYEN THANH HAI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 501/2019

[2021] HKCFI 3885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 501 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;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 30 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Vietnam. He came to Hong Kong illegally through Shenzhen on 29 September 2015.  He lodged a non-refoulement claim with the Immigration Department by way of signification dated 29 September 2015.

5.  He claimed that if refouled, he would be harmed or killed by his creditor, from whom he had borrowed 600-700 million Vietnamese currency and was unable to repay.  The creditor and his subordinates had gone to his shop 7 times to demand repayment of the loan.  They were armed with knives and iron rods.  He was assaulted with iron rods.  He had reported to police. But the police said there was not sufficient evidence to support his complaint.  They threatened to harmed and killed his wife and children if he could not repay.  He fled Vietnam for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  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 Notice of Decision dated 19 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director assessed the risk of him being harmed of killed by the creditor and his subordinates if he returned to Vietnam to be low [10]; that there was no evidence to show that the police was unwilling or unable to provide protection for him [19] and that internal relocation was an option open to him [20].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision. He appeared before the Board on 21 February 2019.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision. The Board found that the applicant’s evidence was vague and not reliable, the examples are that he did not seek protection at the first instance after he had arrived in Hong Kong; that his evidence on the story of being pressed by the creditor for repayment was vague and there was no medical evidence to prove his injuries [31-34].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 17 February 2021 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that it is still dangerous for him to return to Vietnam.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision.  The Court will not usurp his fact finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §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.  His ground in support of this application does not assist his application.

16.  Although the Board had made some hypothetical questions about the applicant’s intention of coming to Hong Kong in its assessment of his credibility, I have considered the facts of the applicant’s case and find that those minor issues will not give him realistic prospect of success in his intended judicial review.  He cannot overcome the issues of state protection and internal relocation, which reduce his risks substantially and therefore there is no real risk that he may be harmed or killed if he returns to Vietnam.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.   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