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

HCAL 970/2019

[2023] HKCFI 1800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 970 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 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High 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 is a national of Vietnam. He entered Hong Kong illegally on 12 October 2014 and surrendered to the Immigration Department on the next day. On the date of surrender, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditors.

5.  According to the applicant, in around 2003, he needed money for his university tuition fee and living expenses. As his father passed away and mother disappeared, he was raised by his grandparents who were unable to afford the payments. Thus, he borrowed a sum from Tung. Initially, he was able to repay the monthly interests from his income of part time jobs. In the beginning of 2011, his grandparents required medical treatments. The applicant then took out a loan with the loan shark Quyen. From June 2012, he started to default the interest payments to Tung. Tung and his followers visited the applicant and demanded for repayments. While he threatened and allowed his followers to beat the applicant, he also granted an extension to the applicant. In August 2012, January 2013 and August 2013 respectively, Tung visited the applicant again and assaulted him for not settling the loan. In September 2013, the applicant decided to take out the loans from the local bank to settle the outstanding sums to Tung. Under the pressure to repay the bank, the applicant defaulted the payments to Quyen. Thereafter, Tung and Quyen had been chasing him for repayments. Despite the applicant escaped to stay in a hostel, in October 2014, he was located by Tung. Out of fear, he eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 26 May 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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”);

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 way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the dispute was a private monetary dispute without state involvement [10(1)]; (ii) Tung and Quyen could not locate the applicant when he escaped to another city [10(2)]; (iii) the creditors’ intention was to collect debt instead of harming or killing him [10(3)]; (iv) state protection would be available to the applicant [11]-[15]; and (v) internal relocation was a viable option [16]-[23].

The Board’s Decision

8.  The applicant first appealed the Director’s Decision to the Board. On 22 March 2019, the Board conducted an oral hearing for his appeal, during which he testified [23].

9.  The Board considered the applicant’s credibility and found that his intention to seek protection in Hong Kong was suspicious [39]-[41]. It proceeded to examine the country of origin information and concluded that state protection would be available to the applicant [42]-[55]. Meanwhile, on the applicant’s own evidence, the alleged injuries failed to attain a minimum level of severity [63]. Further, there was no evidence that the Vietnamese government had any adverse interest against the applicant [71].

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

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

12.  In his affirmation in support of his application, the applicant said if he returns to Vietnam, he will be harmed or killed by the creditor as he is unable to repay the loan. He asked for a longer stay in Hong Kong so that he may obtain help from his family members to pay off his debt.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

15.  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.”

16.  The Board, for the reasons given above, did not believe that the applicant came to Hong Kong for protection, that state protection would be available to him and internal relocation is an option open to him. There is no valid ground from the applicant to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for 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