NGUYEN THANH DAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1817/2019

[2024] HKCFI 2404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1817 OF 2019

________________________

________________________

________________________

J U D G M E N T

________________________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“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, I shall deal with his application on paper.

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.

The applicant

4.  The applicant, aged 36, is a Vietnamese.  He entered Hong Kong illegally on 23 November 2016 and he surrendered to the Immigration Department on 24 November 2016. The applicant made a non-refoulement claim on 27 March 2017.  The claim was made on the basis that, if refouled, he would be harmed or even killed by two creditors (“the creditors”)  and their underlings because he failed to repay a loan owed to them.

5.  According to the applicant, in early 2012, he borrowed money from the creditors to buy a truck to start his transportation business. From the beginning of 2012 to the beginning of 2013, the applicant was able to repay monthly instalments to the creditors. In early 2013, the applicant was involved in a traffic accident, for which he was required to pay compensation to the victims and was sentenced to imprisonment of two years. As the applicant could not afford paying the compensation, he asked his mother to borrow a further sum of money from the creditors.

6.  In mid-2013, while the applicant was still in prison, the creditors together with their underlings went to the applicant’s home demanding repayment and shouting foul language at his mother. They also demanded repayment directly from the applicant twice by visiting him at the prison. Later on, the creditors took possession of the applicant’s house to set off part of the outstanding loan.

7.  The creditors continued demanding repayment from the applicant after he was released from the prison at about the end of 2014.  On one occasion, the creditors even went to the applicant’s workplace to demand repayment, which cost him his job. Since then, the creditors went to the applicant’s newly rented house once a month demanding repayment. In November 2015, the creditors and their underlings used iron bars to assault the applicant on two occasions.  He was hospitalised for a month on the second occasion. The applicant reported the matter to the police in early 2016 upon discharge from the hospital, but no action was taken by them.  Shortly thereafter, the underlings of the creditors threatened that applicant that they would chop his hands and legs off if he failed to repay within ten days.

8.  The applicant worried about his safety and he therefore relocated away from his hometown at the end of January 2016.  Over the course of the next 10 months, he was informed on two occasions that some unknown people were looking for him at his place of stay when he was away.  Out of fear, the applicant entered China illegally in November 2016.  Eventually, he sneaked into Hong Kong from Shenzhen on 23 November 2016.  

9.  The applicant did not maintain contact with his family after leaving Vietnam.  He was of the view that he could not seek protection from the police because they would not handle civil dispute and that he had no money to bribe the corrupt police. The applicant also considered internal relocation not viable because the creditors still managed to find his place of stay during the 10-month period when he relocated away from his hometown immediately before he came to Hong Kong.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 31 October 2017 (“the Director’s Decision”).

The Director’s Decisions

11.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”)  under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”)  (“Torture risk”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i)  the past behaviour of the creditors indicated that they had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as he claimed [13]-[18]; (ii)  state protection would be available to him [20]-[26]; (iii)  internal relocation would be viable [27]-[32] and (iv)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [33]-[38], Persecution risk [39]-[44] or Torture risk [45]-[48].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 27 March 2019, the Board conducted a hearing.

14.  The Board considered it implausible for the applicant to drive a truck without civil liability insurance and to proceed with a motor vehicle transaction without motor insurance in Vietnam based on the country of origin information (“COI”)  [94]-[102].  The Board also found it implausible for the applicant or his family to own a house given their financial situation [110]-[115] and that the applicant could afford staying in the hospital for a month in light of the expensive hospital fee according to COI [139]-[145].

15.  In regard to the compensation for the traffic accident victims, the Board noted that the applicant was inconsistent as to who and how the compensation amount was determined [103]-[106].  Furthermore, it was unbelievable that the creditors would lend further money to the applicant for compensation to the victims [116]-[118].

16.  Regarding the loan from the creditor, the Board had doubts that the creditors would agree to lend such a large sum of money to the applicant for starting up his business in light of his background, working experience and past income [119]-[125].  The Board was also doubtful that the applicant could afford paying the monthly instalments before his imprisonment given the profitability of his business [129]-[132].

17.  The Board considered the claims put forward by the applicant could be given no credence and that he was not a witness of truth [147].  It was not accepted that the applicant (i)  operated a transportation business; (ii) borrowed a large sum of money from the creditors; (iii)  was able to pay the monthly instalments to the creditors before his imprisonment and (iv) borrowed further money from the creditors to pay compensation to the victim [149]-[150].

18.  In any event, there was no indication of state involvement in the matter and the claimed ill-treatment failed to attain the minimum level of severity. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [57]-[70], [156]-[177], [195]-[198]. Furthermore, state protection [71]-[79], [151]-[154], [192]-[193] and internal relocation [179]-[190], [194] would also be available to the applicant.

19.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

20.  The applicant has filed Form 86 dated 2 July 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

22.  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).

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

24.  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.”

25.  For the reasons given above, the Board rejected the applicant’s evidence on the facts in support of his claim. The applicant has raised no valid reason to challenge the Board’s decisions.

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

DISPOSITION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.