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

HCAL 2313/2019

[2024] HKCFI 3613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2313 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 12 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office ("Board") dated 1 August 2019 ("Board's Decision ") dismissing the applicant's appeal against a Chinese decision of the Director of Immigration ("Director") dated 4 September 2017 ("Director's Decision") rejecting the applicant's non-refoulement claim.

2.  In Form 86, the applicant named the Board and the Director together as the proposed respondent(s). As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.  While the Director’s Decision is in Chinese, the Board’s Decision and both the applicant’s Form 86 and supporting affirmation are in English. In the circumstances, it is appropriate to use English in this Form CALL-1.

4.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 3 December 2024. A notice of hearing with a reminder of the consequence of absence dated 21 November 2024 was sent to the applicant’s last known address by ordinary post. The applicant did not turn up at the hearing. A telephone call was made to the applicant’s given telephone number on the day before the hearing and at the hearing, but to no avail. The information before this court shows that the said notice of hearing has not been returned undelivered through the post.

5.  In the circumstances, this court will dispose of the Leave Application according to the materials already placed before the court.

Background

6.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

7.  The applicant is a national of Vietnam. According to immigration records, the applicant previously came to Hong Kong illegally in 1989, and was repatriated to Vietnam in 1995. On 11 January 2014, the applicant came to Hong Kong for the second time illegally via China, and was arrested on the same day. He was found to be in possession of a Vietnamese identity card which did not bear his true identity. On 14 April 2014, the applicant was convicted of entering Hong Kong illegally and making false statement to an Immigration Officer. He was sentenced to 18 months’ imprisonment. The Director received the applicant’s non-refoulement claim on 23 January 2014 covering all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The applicant’s claim was based on a fear of being harmed or killed by his creditor to whom he owed an outstanding loan of 400 million Vietnamese Dong.

8.  The Director decided against the applicant’s claim on all the above applicable grounds. The Director found that the debt dispute between the applicant and the creditor was a pure private dispute that had no government involvement. After having referred to the country of origin information (“COI”), the Director was satisfied that state protection was available and internal relocation alternatives were not unduly harsh or unreasonable. Hence, the applicant’s appeal to the Board.

9.  On 4 April 2019, the applicant attended a hearing before the Board. At the hearing, the applicant confirmed the truth and correctness of his evidence as contained in the hearing bundle and adopted it as the evidence for the appeal. After having considered the principles in relation to the assessment of evidence, the Board found that the applicant’s evidence was unreliable and incredible, which contained numerous material inconsistencies and discrepancies between his evidence and the statements he provided in his refoulement claim. The Board concluded that the assertion of harm and ill treatment from the creditor and his account of the loan were fabricated. Notwithstanding the Board’s rejection of the applicant’s claim on credibility, it went on to consider the COI, and found that state protection and the option of internal relocation were available. The Board concluded that the applicant had failed to demonstrate that he was entitled to non-refoulment protection on any of the applicable grounds, and it affirmed the Director’s Decision.

Legal principles applicable to judicial review

10.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

11.  The applicant’s Form 86 did not contain any grounds for seeking relief. In his supporting affirmation of the same date, he exhibited a copy of the Board’s Decision and deposed that he did not agree with the Board’s Decision. There were no evidence or identification of errors in support of the intended challenge.

12.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence in great detail, the Board found that the applicant was not a truthful witness. The findings of the availability of state protection and internal location were based on the Board’s examination of the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.

13.  In the Leave Application, the applicant has failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the Board’s Decision was wrong. Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness.

14.  I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

16.  The Form 86 is amended on the court’s own motion.

17.  The Leave Application be dismissed.

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