GIANG A NINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

1.   Form 86 be amended, (1) naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party; and (2) the decision to be reviewed be amended to the “Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 28 October 2021.

2.   The application herein for leave to apply for judicial review be dismissed.

Observation for the Applicant:

1.  By Form 86 filed on 1 December 2021, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of (1) the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 28 October 2021 (the “Board’s Decision”) affirming the decision of the Director of Immigration dated 28 April 2021(the “Director’s Decision”) which had rejected his non-refoulment claim on all applicable grounds; and (2) the Director’s Decision.

2.  The Applicant’s Form 86 contains the reference to the Director’s Decision (in addition to the Board’s Decision). It also appears that most if not all of the grounds provided in his Affirmation in support of the Leave Application are directed against the Director’s Decision only. As the Applicant had already appealed the Director’s Decision to the Board which was conducted by way of rehearing, the Board’s Decision effectively supersedes the Director’s Decision.[1] Hence, the Director’s Decision is not a decision which is susceptible to judicial review.

3.  The Applicant did not attend the oral hearing. I have therefore considered the Leave Application in respect of the Board’s Decision based on the materials available before me.[2]

4.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[3] to which is included below, are also adopted herein.

Discussion

5.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (COI) materials, 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 error of laws, procedural unfairness or irrationality in the decision of the Board. [4]

6.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation. [5] As mentioned, most if not all of the grounds provided by the Applicant are directed against the Director’s Decision. They can be summarized as follows:-

(1)   The Director of Immigration reached the decision wrongly and it was not reasonable and fair. The right to life protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights must be protected from extra-judicial killings that the Applicant may face if he is to return to his home country.

(2)   This was a case of unfair attitude shown by the Director which in itself is enough to render the decision void.

(3)   The corruption and incompetency of the police in the Applicant’s country is still a very serious problem. Various human rights groups have submitted reports on the matter of “police corruption”.

(4)   The Director had failed to attain the “high standard of fairness”
 in the decision with the arguments put forward.

7.  As the Director’s Decision is no longer susceptible to judicial review, all of the above grounds directed against the Director’s Decision must be dismissed.

8.  In any event, I have scrutinized the Board’s Decision and come to the view that none of the aforesaid grounds, if directed against the Board, can be established or considered as valid or effective public law grounds.

9.  First, these grounds merely consist of generic, vague and unparticularized assertions using selected keywords and phrases without reference to any underlying facts or matters establishing why, how and where each of those complaints arise in relation to the Board’s Decision. General assertions without particulars are not effective grounds and cannot assist the Applicant.[6]

10.  In particular, the third ground had already been considered by the Board. The Board was acutely aware of the Applicant’s claim that his creditor and his men threatened to kill him because he could not pay the interest of the loan. Having considered the reliable COI materials, the Board found that misconducts and corruptions, whilst present in Vietnam, are not tolerated by the Vietnamese national Government to improve the government efficiency and human rights. The Board therefore concluded that the Applicant’s belief that he cannot obtain assistance and protection from the police or state is not supported by the COI. I see no error in the Board’s decision in this regard.

11.  Second, the Board had assessed the material facts and evidence of the Applicant’s claim. The Board was entitled to find that:-

(1)   It is a civil case on debts collection. There is no sufficient evidence to support that the creditor would harm the Applicant seriously or even kill him.

(2)   The Applicant failed to show substantial or strong grounds for believing that if he returned to Vietnam, he would face a genuine risk of being subject to conduct amounting to a threat to his right to life. Nor can he show that there is a genuine and substantial risk of harm if refouled.

(3)   Reasonable state protection is available to the Applicant and it is not unreasonable for him to internally relocate to other places in Vietnam.

12.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim. The Board was entitled to come to the conclusions it did and reject the Applicant’s claim.

Conclusion

13.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[7] I dismiss the 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