NGUYEN TUAN ANH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1363/2019

[2024] HKCFI 858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1363 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 20 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on the papers.

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 surrendered to the Immigration Department on 27 July 2015 and admitted that he had entered Hong Kong illegal via Shenzhen on 24 July 2015.  He made a non-refoulement claim on 12 August 2015 on the basis that he would be harmed or killed by the Vietnamese triads due to a land dispute.

5.  In short, the applicant claimed that he was being targeted by the triads due to his refusal to accept the Vietnamese government’s offer to compensate the reclamation of his land inherited from his family.  Between the end of 2010 and October 2011, there were negotiations held between him and the Vietnamese government to resolve the amount of compensation as he felt he was not paid fairly.  However, one day in October 2011, the Vietnamese police together with triad members came to his home and began beating him and his brother.  They were both hospitalized and the Vietnamese government continued to pressure the applicant to leave the land.  As he refused, the triads with the police came again to vandalize their home and the house was eventually demolished by bulldozers.  He therefore left to another city in Vietnam to avoid the triad and made plans to leave Vietnam.  Details of his claim are set out at [6] of the Notice of Decision dated 20 June 2017 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.  In elaboration, the Director found that: (i) the risk of harm was assessed to be low as the injuries sustained did not reach the minimum level of severity; and in any event, the applicant was able to remain unharmed from 2011 onwards until his arrival in Hong Kong [12] and [13]; (ii) the dispute was private in nature and there was no state involvement [14]; (iii) state protection would be available to him [15] – [18]; and (iv) internal relocation was a viable option [19]  –  [23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 27 March 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence and clarified matters with the Board [24] – [34].

9.  In essence, the Board found several discrepancies in the applicant’s evidence, which ultimately cast grave doubt on the credibility of his claim [52].  Such adverse finding was exemplified by the following: (i) the estimated value of the land was vague, whereas on the one hand he stated on record his family should be compensated in the sum of 1,000 million Vietnamese Dong for the land, while on the other hand, he testified at the hearing he had no idea about the value of the land [45]; (ii) his timeframe was inconsistent as he stated on record the government would evict him by the end of 2011, while he deposed at the hearing the government never said such thing [46]; and (iii) the details and conduct regarding the police and triads during the assault at his home was not consistent and he could offer no explanation to the Board [47] – [49]. 

10.  Despite the above factual findings, the Board nevertheless continued to proceed to assess the individual grounds of non-refoulement protection relating to the applicant’s claim.  Firstly, it found there was no state involvement nor state acquiescence as he was able to remain unharmed between 2011 and 2015; and was able to depart the country freely [57] and [58].  Secondly, his injuries were not serious and there was insufficient evidence to support there would be any foreseeable and real risk of severe harm if he is refouled [62] and [63].  Lastly, based on objective and credible COI, the Board found state protection was available and internal relocation was viable [64] – [73].

11.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

12.  The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In the applicant’s affirmation in support of his application, the applicant reiterated his story of the fact without raising any specific ground.

DISCUSSION

14.  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).

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

16.  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.”

17.  The Board had given its reasons above for rejecting his evidence and his claim altogether.  There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19.  I refuse to grant leave to 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