NGO QUANG DUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 47/2021

[2021] HKCFI 1376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 47 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 present 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 December 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested a hearing and he appeared before the Court.

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 in 2015 and sought refoulement protection.  His application was rejected.  But he did not appeal against this decision.  In 2018, he was arrested for committing criminal offences in Hong Kong, for which he was sentenced to imprisonment.  By written representations respectively dated 2 July 2020 and 27 July 2020, he raised non-refoulement claim with the Immigration Department.

5.  He claimed that if refouled, he would be harmed or killed by his three creditors, namely, Hoang Van Hieu (“Hoang”), Pham Van Hoa (“Pham”) and Le Van Thang (“Le”) and their subordinates because he was unable to repay his loans.

6.  In 2013, he borrowed 500 million Vietnam currency from the bank in order to set up his fishing business by buying a new fishing vessel.  He had to mortgage his house to the bank for the loan. However, the bank loan was insufficient, so he borrowed another 500 million Vietnam currency from Hoang.  He business was fine at the beginning.  In 2014, whilst he was fishing on his fishing boat at sea, another vessel ran into his fishing boat.  He was thrown into the sea and saved by a nearby fishing boat. His fishing boat sank into the sea.  He was unable to get compensation as he was unable to identify the other vessel in the dark.  The bank waived his debt and returned the mortgage document to him.  Hoang came to his house with his subordinates demanding repayment of the loan.  He was unable to repay despite time was given to him.  Hoang and his subordinates assaulted him with iron rods and sticks.  He was injured.  He moved out of his house and lived in other places.  In June 2015, he left Vietnam for Hong Kong.

7.  In his supplemental statement, he said that he had also borrowed money from Pham and Le.  They also went to his house to look for him.

8.  Details of his story are set out in paragraphs 8 and 9 of the Director’s Decision described below.

The Director’s Decision

9.  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”).

10.  By Notice of Decision dated 22 October 2020 (“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 being harmed or killed by the creditors if he returned to Vietnam was assessed to be low [14]; that state protection was available to him [19] and internal relocation was an option open to him [22].

The Board’s Decision

11.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 16 December 2020.

12.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that his evidence was incoherent and contradictory and that his conduct of commission of crimes in Hong Kong was inconsistent with his purpose of seeking non-refoulement protection [22]; that state protection is available to him upon his return to Vietnam [28]; that there was no state involvement [31]; that there is no real risk of torture upon his return to Vietnam [33]; that he fails to establish his risk under BOR 2 risk [38]; that his case does not fall within the protection of Persecution risk and that internal relocation is an option open to him [52].

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 12 January 2021 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, he said that he did not agree with the Board’s Decision, which is unfair and unjust.  If he returns to Vietnam, his life would be in danger.

DISCUSSION

15.  The applicant confirmed that he was treated fairly before the Board.  He was invited to make further submissions apart from his written submission.  He said that he wanted to be granted bail because he had been detained in the detention centre for a very long time.

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.… …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.  His grounds in support of this application do not assist his application.

19.  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.

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

CONCLUSION

21.  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