NGUYEN NGOC DUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2749/2018

[2021] HKCFI 2181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2749 of 2018

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 30 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application 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.  He came to Hong Kong illegally on 22 November 2015.  On 23 November 2015, he surrendered to the Immigration Department.  On the same day, he lodged non-refoulement claim with the Immigration Department.

5.  He claimed that if refouled, he would be harmed or killed by his creditor from whom he had borrowed USD 30,000 for his chicken farm business, which failed due to plague.  He was unable to repay his debt.  His creditor had brought some triad members to assault him.  He threatened that he would kill him if he did not repay the loan.  On one occasion, the triad members used a knife to cut his finger, as a result of which his finger tendon was severed.  He had to live in other places in order to avoid the creditor.  He finally decided to leave Vietnam for Hong Kong.  Details of his story are set out in paragraph 6 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 9 December 2016 (“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 the creditor if he returned to Vietnam was assessed to be low [10]; that state protection was available to him [13] and internal relocation was an option open to him [14].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 20 July 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that his evidence was not reliable and was not accepted [20-24]; that the probability that the creditor would pursue him after he returned to Vietnam was low [27]; that state protection would be available to him [29 & 30] and that internal relocation was an option open to him [31].  The Board further found that the risk that he would be subjected to Torture risk would be low [39]; he failed to establish BOR 2 or BOR 3 risks [45]; that his case did not fall within the context of Persecution risk [47].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 4 December 2018 to apply 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 wanted to review the Board’s Decision.  He believed that his life would be in danger if he returned to Vietnam as the loan shark and his underlings would inflict more serious harm on him.  He cannot prove risk of harm since he is unable to guess what will happen to him.

DISCUSSION

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

13.  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.”

14.  His grounds in support of this application are his opinions only without any evidence in support of them.  In any event, internal relocation is obviously available to him if he returns to Vietnam.

15.  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.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  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