LE MANH HIEP v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1647/2018

[2020] HKCFI 888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1647 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing on 27 August 2019. I shall therefore deal with his application on paper.

The applicant

2.  The applicant is a Vietnamese national. He came to Hong Kong illegally on 29 November 2015. He surrendered to the Immigration Department on 30 November 2015. On the same day, he lodged a non-refoulement claim.

3.  In support of his claim, he said that if refouled, he would be harmed or killed by the creditor, Long because he was unable to repay the loan.

4.  He had borrowed 500 million Vietnam currency for his metal business in 2008. His business did not run well. In March 2011, his business collapsed. He was unable to pay the debt. Long had brought four or five men to come to his home and demanded repayment of the loan, threatening him that if he was unable to repay, they would kill him. Long slapped his face before he left. Ten days later, they came again and his men were carrying knives with them. He escaped to live in his friend’s place. In May 2011, he found a job as car mechanic. His father came to visit him. When he was sending his father away, he saw Long together with 5 or 6 men coming towards him. He ran away immediately to his friend’s home. He was afraid that somehow Long would find him. So, he came to Hong Kong.

The Director’s Decision

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

a.  risk of torture under Part VIIC 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”).

6.  By Notice of Decision dated 9 December 2016 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.  The applicant appealed to the Board against the Director’s Decision. Having considered the applicant’s case, the Board decided to deal with his appeal on paper without a hearing.

8.  By Decision dated 18 July 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision came to the facts below.

a.  The applicant failed to established that the treatments he received from the creditor had reached the minimum threshold of torture and there was no evidence that there was a real risk of torture if he returned to Vietnam [24].

b.  It was a debt dispute between him and Long and the Vietnam government was not involved [25].

c.  From the Country of Origin Information, there is no evidence to show that Vietnam government is unable or unwilling to enforce the law [40].

d.  His BOR2 risk was not established [43].

e.  His BOR 3 risk was not established [46 & 47].

f.  His Persecution risk was not established [52].

g.  Internal relocation is open to him [57].

Application for leave to apply for judicial review

10.  He filed Form 86 dated 16 August 2018 for leave to apply for judicial review of the Board’s Decision and the Director’s Decision respectively.

11.  In his affirmation, he maintained that he would be in danger if he returned to Vietnam.

DISCUSSION

The Director’s Decision

12.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeals and made its Decisions.

13.  The applicant has not set out any exceptional circumstances.

14.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

16.  The Board was right to deal with his appeal on paper under the accepted facts, which would not allow him to claim non-refoulement under the law and Convention.

17.  The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42].

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

CONCLUSION

19.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

20.  By letter dated 16 January 2020, the applicant applied to withdraw his application. Since his application has been dismissed, it is not necessary to deal with 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