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HCAL 2724/2018
[2021] HKCFI 1387
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2724 of 2018
BETWEEN
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Tran Ngoc Thuy |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 16 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant, who was formerly legally represented, has served notice to the court, stating that he would appear in court in person. However, he was absent on the day of hearing. I consider that he has waived his right to be heard and I decide to 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 had come to Hong Kong illegally for a number of times between 1989 and 1996. He was repatriated to Vietnam. On 1 April 2013, he was arrested by police for remaining in Hong Kong illegally, for which he was convicted and sentenced to imprisonment. He made a non-refoulement claim with the Immigration Department by written signification on 11 September 2014.
5. He claimed that if refouled, he would be ill-treated or harmed by the police as his tenant was arrested in a treason case and he feared that the police might accuse him of the same as he had made a lot of trips going in and out of the country on previous occasions.
6. In 2012, he leased his house to a lawyer, who opened his business there. Six months later, police came to arrest the tenant. He heard that it was because his tenant was charged with the offence of treason. He was afraid that the police would accuse him of the same offence since he had made trips outside Vietnam many times. Treason is a very serious offence in Vietnam. He was afraid that if he was arrested or convicted, he would be ill-treated by the authority and the sentence might be death penalty. He therefore came to Hong Kong, where he had visited many times. He admitted that between May 1999 and February 2010, he had been to Hong Kong and deported back to Vietnam six times. Each time he came to Hong Kong, it was for economic purposes.
The Director’s Decision
7. 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”).
8. By Notice of Decision dated 27 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of risk of being ill-treated or harmed by the police upon his return to Vietnam was assessed to be low [20] and that the Vietnamese government would take action against those police officers who committed crimes, therefore state protection was available to him [23-26].
The Board’s Decision
9. The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 1 June 2018. The adjudicator had raised questions to test his evidence.
10. By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that the applicant was found to have given inconsistent evidence to the immigration officer and to the Board, such inconsistencies being so significant that the Board found his evidence incredible [51-53]; that even if his evidence were believed, the Board would still dismiss his appeal because his allegation that he would be accused of treason by police in Vietnam was unacceptable as the Vietnam government was aware of his previous trips [62]; that he had never encountered any harassment from the Vietnam government before [63]; that his allegation was only speculation [73 & 74]; that having considered the country of origin information (“COI”) both for and against the applicant, the Board found that state protection would be available to him if he encounters difficulties after his return to Vietnam [75].
Application for leave to apply for judicial review
11. The applicant filed Form 86 on 30 November 2018 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, he said that he is not satisfied with the Board’s Decision for the reasons below.
(1) Subjective adjudication: The Board rejected his claim on those risks above on the adjudicator’s subject views only. He had given evidence that the police in Vietnam would assault him and torture him. He might be sentenced to death penalty. The adjudicator was relying upon his subjective view of the justice system of the western countries without knowing the communist regime.
(2) The Board does not understand the real situations: The information set out in paragraphs 72-75 are not the real situation. The real situation in Vietnam is that the Vietnamese government is a corrupt regime. The Vietnamese citizens are being treated unfairly by the government. They choose to leave their country. The fact that the Vietnamese government is a corrupt regime is proved by the news that the Prime Minister resigned because he considered that the government was autocratic and corrupt causing people’s anger. The Board is ignorant of the evidence.
DISCUSSION
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. 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.”
15. His grounds in support of this application do not assist his application.
16. Ground (1) is only his opinion. The Board had tested his evidence and given reasons in support of its decisions. The fundamental reason for the Board to reject his evidence is that he had given inconsistent and contradictory evidence in support of the facts of his case. Since the Board had rejected his evidence on the facts of his case, he has no factual basis in support of his case.
17. Ground (2) is also his opinion only. Both the Director and the Board had considered COI on the corruption of the officials in Vietnam. However, they came to the conclusion that the Vietnam government have been attempting to enforce the law against corruptions in Vietnam. Balancing the situations, they came to the conclusion that the Vietnam government would be able to provide him with protection. The incident of the Prime Minister in the news report was one of the incidents of corruption in Vietnam, which should not be taken as nothing can be done by the government to deal with corruptions in Vietnam. This news shows that the Prime Minister is a responsible person, therefore he stepped down to be replaced by another more capable person to take his place.
18. 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.
19. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.
CONCLUSION
20. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.
Dated the 20th day of May 2021
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(M.O. WONG (Ms)) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 20 May 2021
Tran Ngoc Thuy
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 May 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6179/17/2/178/V964
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1313/16 (Formerly RBCZ 2888/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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