TRAN VAN HUYNH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 770/2023

[2024] HKCFI 3615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 770 of 2023

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 the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion;

2.  Leave to the applicant to withdraw the Leave Application; and

3.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 19 May 2023, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) dated 28 April 2023 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision (“Director’s Decision”) dated 7 March 2022 of the Director of Immigration (“Director”) who refused the applicant’s claim for non-refoulement protection.

2.  In Form 86, the applicant named the Board and the Director together as the proposed respondents. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  It should be mentioned that both the Director’s Decision and the Board’s Decision are in the Chinese language. However, the Form 86 and the supporting affirmation were both prepared in the English language. In the circumstances, this court considers it appropriate to render the decision in the Form CALL-1 in English. Accordingly, the order will also be drawn up in English.

Background

4.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

5.  The applicant came from Vietnam. On 3 October 2021, the applicant came to Hong Kong illegally by boat via Mainland China, and was later arrested on 21 October 2021. On 28 October 2021, the Director received the applicant’s non-refoulement application, relying on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on his fear of being harmed or killed by his creditors.

6.  The Director decided against the applicant’s claim on all applicable grounds. The Director considered that the asserted risks were low. After having considered the country of origin information (“COI”), the Director found that both state protection and the option of internal relocation were reasonably available. Hence, the appeal to the Board.

7.  After having considered the oral evidence received at the hearing on 10 January 2023 before the Board, the Board found numerous inconsistencies in the material particulars. The Board did not believe in the applicant’s account of events, and rejected his claims. The COI was also taken into account when the Board found that internal relocation and state protection were available for a purely private debt disputes between the applicant and his creditors.

Legal principles applicable to judicial review

8.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.  In his supporting affirmation of the same date, the applicant only exhibited a copy of the Board’s Decision but did not provide any grounds. The applicant set out 5 grounds in his Form 86 in support of the Leave Application. The gist of the applicant’s grounds is that the Board was wrong in rejecting his evidence without giving him an opportunity to respond, and that it was unreasonable and unfair of the Board in having failed to give sufficient consideration and weight to the matters in relation to state acquiescence and COI. The applicant however has not descended to particulars on any of the grounds he provided. They are only bare assertions without evidence or identification of specific errors in support of the grounds.

10.  Having rigorously examined the Director’s and Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant failed to discharge his burden of proving the asserted fears and risks.

11.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

12.  On 22 October 2024, the applicant filed an affirmation in English to apply to withdraw the Leave Application, stating that it was now safe for him to return to his country.

13.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

14.  The Form 86 is amended on the court’s own motion.

15.  Leave to the applicant to withdraw the Leave Application.

16.  The Leave Application be dismissed.

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