NGUYEN VAN HUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 501/2022

[2022] HKCFI 3336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 501 of 2022

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 the 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 11 October 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for the applicant to appear before the Court. However, the applicant was absent without prior notice to the 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 is a national of Vietnam. He entered Hong Kong illegally on 8 July 2015 and surrendered himself to the Immigration Department on 22 July 2015. On the same date, 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 Bui Minh Tuan (“Bui”).

5.  The applicant’s claimed fear of harm from Bui originated from a loan dispute. He borrowed the loan from Bui in June 2014 for his seafood business but had been in default since September 2014. In December 2014, Bui and some unknown men visited the applicant and assaulted him, demanding for immediate repayments. Thereafter, the applicant escaped to live in his friend’s boat. However, in April 2015, he saw that the three men who followed Bui was nearby his boat. The applicant then went to Hanoi. While he did not encounter Bui and the followers, out of fear, he decided to seek protection in Hong Kong. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 December 2016 by the Director (the “Director’s Decision”).

6.  On 19 March 2020, the applicant filed a subsequent claim which was allowed by the Immigration Department. In his subsequent claim, the applicant claimed that his family informed him that they had settled his loan with Bui in early 2018. As a result, on 13 April 2018, the applicant, together with his wife and daughter, returned to Vietnam. In August 2018, he intended to start the seafood business again and borrowed a loan from Nguyen Van Con (“Con”). Yet, in November 2019, his business collapsed and again he defaulted the loan payment.

7.  In December 2019, Con started to chase the applicant for the loan payment. He visited the applicant’s house and assaulted the applicant. Two days later, the applicant escaped to hide in another village. Nevertheless, he was intercepted by Con and some gangsters. They attacked him with wooden sticks. Thereafter, the applicant fled to Hong Kong for protection. Details of his subsequent claim are set out at paragraph 9 of the Notice of Decision dated 11 September 2020 by the Director (the “Director’s Subsequent Decision”).

The Director’s Decision on Subsequent Claim

8.  The Director considered the applicant’s subsequent 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”).

9.  By way of the Director’s Subsequent Decision, the Director dismissed the applicant’s subsequent claim. In elaboration, the Director found that (i) the applicant’s claimed fear of harm from Bui ceased to exist as his family already settled the loan. As to the claimed fear of harm from Con, the alleged injuries failed to attain the minimum level of severity [15]-[16]; (ii) there was no evidence that Con intended to harm or even kill him [17]; (iii) the dispute with Con was a private one without state involvement [18]; (iv) state protection would be available to him [19]-[21]; and (v) internal relocation was a viable alternative [22]-[27].

The Board’s Decision

10.  The applicant appealed the Director’s Subsequent Decision to the Board. On 25 February 2021, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter [10].

11.  Having considered the applicant’s evidence, the Board noted the followings. First, the applicant did not provide any evidence of the loan. Secondly, the creditor and the followers had ample opportunities to kill the applicant but did not do so. Thirdly, the Board observed that the applicant was in a stable state of mind after the alleged incidents. The above findings indicated that the applicant’s claimed fear of harm was not imminent or the ill-treatments did not attain a minimum level of severity. Further, the dispute was a pure monetary dispute without state involvement [34]-[39]. Meanwhile, the country of origin information did not support a finding that state protection would not be available to the applicant [42]-[47]. In any event, internal relocation was a viable alternative [90]-[96].

12.  As a result, the Board rejected the applicant’s claim and dismissed his appeal.

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

13.  The applicant has filed Form 86 dated 17 June 2022 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant had raised the grounds below.

(1)  He believes that the Board’s Decision is wrong as it is unreasonable and unfair because the Board did not give him sufficient time and chance to arrange evidence for his hearing.

(2)  The Director did not consider state acquiescence in his case as he was tortured by state agencies.

(3)  The Director had failed to consider his arguments and also the Country of Origin Information in his favour.

(4)  Corruption and incompetency of the administration in his country is serious. Human rights protection is not sufficient and the Director had failed attained high standards of fairness.

DISCUSSION

15.  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).

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. (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.”

18.  The grounds in paragraph 14 do not assist his application. Ground (1) is not supported by any evidence as there was no application before the Board for time to prepare his case. Ground (2) is simply not the fact found by the Director or the Board. Ground (3) and ground (4) are his bare assertions and opinions without any evidence in support. All grounds fail.

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

CONCLUSION

21.  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