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

HCAL 123/2021

[2021] HKCFI 1680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 123 of 2021

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.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 1 December 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  He is now being detained by the Immigration Department.

2.  The applicant did not ask for a 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 RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Vietnam.  He was arrested by police on 29 May 2019 for possession of fake Hong Kong Identity Card and for illegal remaining in Hong Kong.  He was charged, convicted and sentenced to 15 months’ imprisonment.  He lodged his non-refoulement claim with the Immigration Department on 16 December 2019.

5.  He claimed that if refouled, he would be harmed or killed by his creditor and his people because he was unable to repay his debt.  He borrowed 600 million Vietnamese currency from the creditor for expansion of his food business.  He was unable to pay the interest because he had to spend the money on his mother’s medical expenses.  The creditor demanded payment. He brought his people to his home and his shop where he assaulted him and his wife and son.  They hit him with sticks and the back of the knife.  His head was banged to the wall.  His son’s leg was chopped with a knife.  He complained to police, but they did not make investigation into the matter.  He had to escape and live in other places before coming to Hong Kong.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 8 April 2020 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the risk of being harmed of killed by his creditor if he returned to Vietnam was assessed to be low [11]; that state protection would be available to him [16]; and that internal relocation was an option open to him [20].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He appeared before the Board on 7 July 2020.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision.  Having considered the applicant’s evidence, the Board at paragraph 39 of its Decision came to its conclusion that the applicant is a dishonest and unreliable witness and that there was no factual basis on which the Board could accept that he was subjected to any risk of harm in his home country. [40]  There was no evidence to show that the state was involved or refused to render protection to him. [50 & 52]  Also, internal relocation was an option open to him. [74]

10.  I shall, however, set out my views on the Board’s assessment of the applicant’s evidence on the facts.  Paragraph 38 of its Decision set out the reasons why it considered the applicant’s facts are not reliable.

(1)  The Board was entitled to take into consideration that the applicant did not seek protection immediately after he came to Hong Kong.  He had taken more than 10 months to raise the claim, not until he was arrested for illegally working in Hong Kong.  Section 37ZD (1) (b) of the Ordinance.

(2)  The fact that the applicant and his family were able to hide themselves from the creditor should not affect the applicant’s credibility on his evidence that he and his family were injured by the creditor and his people previously.

(3)  The applicant’s oral evidence that the creditor only focused on him, not his family seems to be irrelevant to the fact that the creditor had harmed his family at home and the shop, the former being his opinion, the latter, the fact, which could have co-existed irrespective of the creditor’s intention.

(4)  The Board is entitled to take the fact that they were able to avoid the creditor to discredit his allegation that internal relocation is not possible.

(5)  The Board is also entitled to rely upon the country of origin information to refute his opinion that internal relocation is not possible.

(6)  That fact that he had complained to police twice should not affect his credibility of the facts he alleged.

11.  In any event, despite those reservations above, the Board was entitled to hold the view that the applicant came to Hong Kong illegally not for the purpose for seeking asylum, but for getting jobs instead. Even if the applicant’s facts were accepted, his claim on the risks under paragraph 6 above fails as he should have state protection and that internal relocation should be an option open to him.

Application for leave to apply for judicial review

12.  The applicant filed Form 86 on 3 February 2021 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, he said that he did not agree with the Board’s Decision as it was unfair.

DISCUSSION

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

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

16.  His grounds in support of this application do not assist his application.

17.  I shall repeat what I have said in paragraph 11 above.

18.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  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