NGUYEN VAN LANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 151/2020

[2020] HKCFI 3144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 151 of 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Vietnam who arrived in Hong Kong on 23 September 2018 with permission to remain as a visitor up to 30 September 2018 when he did not depart and instead overstayed and was arrested by police on 29 November 2018. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan.     

2.  By a Notice of Decision dated 26 February 2019 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that his creditor and his men would harm or kill him or that his perceived fear is real or foreseeable upon his return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention for his creditor to seriously harm him other than to put pressure on him to repay his loan, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 97 million people spread across a vast territory of more than 310,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Vietnam away from his home district in large cities such as Ha long City where it would be difficult if not impossible for his creditor to locate him.

4.  On 11 March 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 4 July 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 20 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 15 January 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he will be killed by his creditor if refouled to his home country but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

6.  However, before his application could be dealt with by the court, the Applicant on 17 November 2020 wrote to the court to withdraw his application as his problem has been resolved and that he can safely return to Vietnam.

7.  On 4 December 2020 the Applicant further wrote to confirm that he wants to return to his home country and that he has friends who will support him in buying an air ticket for him to return to Vietnam.

8.  In the premises and as the basis of his claim no longer exists, it would be appropriate for his application to be dismissed rather than withdrawn. Accordingly I accede to the Applicant’s request and dismiss his leave 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