NGUYEN TUAN ANH alias DAO DUNG MINH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1268/2021

[2021] HKCFI 3155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1268 of 2021

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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 19 August 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  He is now being detained by the Immigration Department. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Vietnam. Between 2013 and 2015, he had come to Hong Kong illegally and was then repatriated back to Vietnam.  On 29 June 2020, he was arrested by police for entering Hong Kong illegally and other offences.  He was sentenced to 15 months’ imprisonment.  He lodged non-refoulement claim with the Immigration Department on 19 December 2020.

5.  He claimed that if refouled, he would be harmed or killed by his creditors and his subordinates because he had borrowed from 2 creditors a total sum of 9 billion Vietnamese currency and he was unable to repay his debts.  He was attacked by the creditors’ subordinates. He suffered injuries and he lived in other places in order to avoid them.  He left Vietnam for Hong Kong.  Details of his story are set out in paragraphs 7-34 of the Director’s Decision described below.

The Director’s Decision

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

a.  risk of torture under Part VII C 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”).

7.  By Notice of Decision dated 25 May 2021 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of him being harmed or killed by his creditors if he returned to Vietnam was assessed to be low [13]; that state protection was available to him [14] and that internal relocation was an option open to him [18].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He appeared before the Board on 6 August 2021.

9.  By the Board’s Decision, the Board affirmed the Director’s Decision and dismissed his appeal.  The Board further found that the applicant’s evidence was incredible, unreliable and /or implausible in so far as general credibility and reliability were concerned [39(h)].  He also failed to establish that he would face any real risk of harm in the future if he was refouled to Vietnam [55].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 9 September 2021 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he disagreed with the Board’s Decision and it was dangerous for him to return to Vietnam.

DISCUSSION

12.  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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

15.  He has submitted no valid ground to assist his application.  The Board has reject his evidence on the facts of his claim.  He therefore has no factual basis in support of his claim.

16.  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.

17.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  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