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

HCAL 1816/2019

[2024] HKCFI 2311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1816 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 April 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 at the hearing on 3 July 2024 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 59, is a Vietnamese. He first came to Hong Kong as a visitor in 2002 and was repatriated after overstaying. Thereafter he entered Hong Kong illegally on a number of occasions, during which he was convicted of various criminal and immigration offences. The applicant last entered Hong Kong illegally on 27 March 2015. He surrendered to the Immigration Department on 13 April 2015 and made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by a creditor (“the creditor”) because he failed to repay a loan owed to him.

5.  According to the applicant, he took out a loan from the creditor to support the garment business operated by him and his wife. On 24 February 2015, a fire broke out, which destroyed his garment product and equipment, so that he was no longer able to pay instalment to the creditor. Two weeks later, the creditor came to demand repayment. Eventually, although he agreed to extend the time for repayment for a month, he threatened to chop the applicant’s leg off if he failed to repay by deadline.

6.  As the applicant knew that he would not be able to repay, he relocated to Ho Chi Minh City with his wife. While in Ho Chi Minh City, the applicant learnt from his family that the creditor had posted notice threatening to chop off the applicant’s leg if he failed to repay the loan. On 24 March 2015, the applicant and his wife left Vietnam and sneaked into Hong Kong from Shenzhen on 25 March 2015. The applicant’s wife was repatriated on voluntary basis in September 2016, as she was worried about her children. Thereafter, she lived with her parents, where she had not encountered the creditor.

7.  The applicant’s father had reported the creditor’s threat to the police on 10 April 2015, but no action had been taken. The applicant believed that the police were corrupt and would not get involved in private financial dispute. He also claimed to have been treated unfairly by the Vietnamese authorities after repatriation because he had entered Hong Kong illegally. Meanwhile, the applicant considered internal relocation not viable as well because he had a feeling that he would be under surveillance and followed.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 21 December 2017 (“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 (“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 had doubts towards the credibility of the applicant given the significant inconsistencies regarding the length of time he spent in Hong Kong before surrendering to the Immigration Department [17].

11.  In any event, the Director found that (i) there was no evidence showing that the creditor had any relationship with the Vietnamese government or that he had means to find the applicant anywhere within Vietnam [19.1]; (ii) the past behaviour of the creditor indicated that he had no real intention to seriously harm or kill the applicant [19.2]; (iii) state protection would be available to him [20]-[27]; (iv) internal relocation would be viable [28]-[35] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [36]-[42], Persecution risk [43]-[48] or Torture risk [49]-[53].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 2 November 2018, the Board conducted a hearing.

13.  The Board considered that the core of the applicant’s evidence lacked credibility. His evidence in relation to the details of the loan was vague and it was also illogical that the creditor would not have fixed any deadline for the repayment of the principal sum of the loan. The applicant’s claim about the unfair treatment by the Vietnamese authorities was also unreliable and unjustified [71]. Based on such findings, the Board rejected that the applicant had incurred a loan to the creditor and was subjected to his threats [72].

14.  In any event, there was no evidence of state involvement in the matter and that the applicant had never been physically harmed by the creditor. The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [27]-[42], [74]-[82]. Furthermore, state protection and internal relocation would be available to him according to the country of origin information [51]-[68], [84].

15.  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

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

17.  In his affirmation in support of his application, the applicant attached a copy of the Board’s Decision without specifying any ground to challenge the Board’s Decision.

DISCUSSION

18.  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).

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

20.  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.”

21.  For the reasons given above, the Board finds that there is no real risk that the applicant will be harmed if he returns to Vietnam. The applicant has raised no valid reason to challenge the Board’s Decision. There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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