VU NHAN KHIEN alias VU NHAN HIEU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1737/2020

[2025] HKCFI 4091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1737 of 2020

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 30 June 2020  of the Torture Claims Appeal Board (“the Board’s Decision”), dismissing the appeal against the Director’s Decision as described below.

2.  The applicant did not ask for a hearing.

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.

4.  The Board’s Decision is in Chinese.  Since the applicant wrote his affirmation in English, I prepare my decisions in English for his convenience.

The applicant                                                                                                                     

5.  The applicant is a national of Vietnam.  On 31 August 2019, police arrested him for illegal remaining in Hong Kong.  He lodged a non-refoulement claim with the Immigration Department on the basis that, if refouled, he will be harmed or killed by his creditor, from whom he had borrowed money for his fishing farm.  He was unable to repay his debt.  

6.   According to the applicant, his creditor and his people had attacked him with wooden pole and knife.  They also threatened with death. 

7.   Details of his claim are set out in the Board’s Decision.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001737_2020_files/the_Board's_Decision.pdf.

The Director’s Decision

8.  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”). 

9.  By way of Notice of Decision dated 6 April 2020 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.  Besides, state protection is available and internal relocation is viable, which will mitigate or neutralize the applicable risks. 

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  The Board considered that it would not be necessary to hold an oral hearing for his appeal, having considered the Court of Appeal decision. 

11.  Having considered the evidence, the Board found that the risk of harm if  he returns to Vietnam is very low [20]; that state protection will be provided [23]-[31]; that the state was no involved in the incidents [35]-[36] ; and inter relocation is viable [47]-50]; and the applicant had written in his letter dated 11 June 2020 that it would be safe for him to return to Vietnam and he intended to withdraw his appeal. 

12.  For the reasons above, the Board dismiss his appeal. 

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

13.  The applicant has filed Form 86 dated 27 August 2020 for leave to apply for judicial review of the Board’s Decision ST v Betty Kwan CACV 115/2013. 

14.  In his affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision. 

DISCUSSION

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

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

17.  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.”

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

DISPOSITION

19.  I refuse to grant leave to 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