DOAN VAN VINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 63/2019

[2023] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 63 of 2019

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

2.  The applicant did not request an oral 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 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 is a national of Vietnam.  He entered Hong Kong illegally on 19 November 2017 and was arrested in Hong Kong on 21 November 2017 for offences, inter alia, of illegal remaining.  On 10 May 2018, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Do Trong Hai (“DTH”).

5.  According to the applicant, in the end of 2014, he took out a loan with DTH’s company for his garment business.  Initially, he was able to repay the interests.  In around mid-2016, his uncle was sentenced to prison, which led to the cease of cooperation from the applicant’s business partners.  As a result, his business deteriorated.  Starting in June 2016, the applicant defaulted the loan payments.  Since then, DTH had been threatening and assaulting him for the repayments.  In around February or March 2017, DTH visited him again and demanded the repayment of the whole sum by the end of December 2017. Otherwise, he would take the applicant’s organs.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 16 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) DTH and his followers had no intention to harm or kill the applicant and the alleged injuries sustained by the applicant failed to attain a minimum level of severity.  Meanwhile, the dispute with DTH was private in nature without state involvement [10]; (ii) state protection would be available to him [11]-[12]; and (iii) internal relocation was a viable alternative [13]-[15].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 8 November 2018, the Board conducted an oral hearing for his appeal.

9.  The Board recapped the applicant’s claim and his personal background [6]-[16].  It also considered the relevant country of origin information (“COI”) [17]-[44], as well as the laws governing the non-refoulement claim [45]-[75].

10.  Bearing these in mind, the Board assessed the applicant’s evidence.  It first considered the diagrams showing the applicant’s injuries but refused to accept that the said injuries were caused by the moneylender for his failure to repay the loan [91].  It also noted the applicant’s use of forged identity card and illegal employment in Hong Kong [92]-[96].  The Board found that it was implausible that the applicant, one with no prior business experience, could obtain the said loan from DTH [97]-[99].  It also highlighted the inconsistencies in events about his business and the loan [100]-[106].  It further noticed that the applicant was unable to provide the basic information of his business, or even the basic information about business operation in Vietnam [107]-[111].

11.  Meanwhile, the Board also took into account the facts that the applicant did not seek protection in China, his safe stay in Ho Chi Minh city, his failure to report to the incidents to the police as well as his failure to give any concrete evidence on his alleged hospitalization after the attacks [112]-[116].

12.  In these circumstances, the Board found that the applicant’s claim lacking credibility.  Further, the Board found that the COI supported the findings of availabilities of both state protection and internal relocation [123]-[128]; [153]-[163].

13.  Thus, the Board rejected the applicant’s claim and dismissed his appeal.

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

14.  The applicant has filed Form 86 dated 8 January 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affidavit in support of his application, the applicant said he does not agree with the Board and cannot go back to his country because his life is still in danger.

DISCUSSION

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

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

18.  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.”

19.  There is no valid reason from the applicant to challenge the Board’s Decision.

20.  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.

21.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for 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