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HCAL 462/2019
[2021] HKCFI 174
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 462 OF 2019
BETWEEN
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Tran Van Chung |
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 C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.
2. The applicant, born in 1981, is a national of Vietnam. On 29 March 2016, he surrendered to the Immigration Department for illegal remaining in Hong Kong. He then lodged a non-refoulement claim. He was subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [24-35] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his creditor. He said that he failed to repay the debt of 500 million Vietnamese Dong he borrowed from a loan shark in July 2014. He borrowed the money to start his fish farm business. The business closed down in December 2015. He had been on 3 occasions assaulted and threatened by his creditor that he would be killed if he could not repay the debt. He followed what other people had done to depart Vietnam for Hong Kong to avoid the loan repayment.
The Director’s decision
4. By a notice of decision dated 26 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
5. The applicant attended a hearing before the Board on 14 December 2018.
6. By a decision dated 15 February 2019, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
7. The Board gave reasons for rejecting the applicant’s claim at para [39-42] of its decision. In a nutshell, the Board found the applicant’s intention to seek protection in Hong Kong suspicious [42]. The creditor merely wanted him to repay and had no intention to kill him or causing serious harm on him [45]. The ill-treatment in the alleged incidents did not attain a minimum level of severity as required by law. Furthermore, state protection is available to him [63].
8. Having considered the totality of the evidence before it, the Board concluded that he did not face genuine and substantial risk of being subjected to ill-treatment, if refouled [74].
Application for leave to apply for judicial review
9. The applicant filed a Form 86 on 19 February 2019 for leave to apply for judicial review of the decision of the Board.
10. In the Form 86, the applicant did not set out his grounds of review. In his affirmation in support, he repeated what he told the Director and the Board about his inability to repay the loan and the threats and assaults on him by the creditor. He did not request an oral hearing. The application is therefore considered on the papers.
Discussion
11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and 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 errors of law, procedural unfairness or irrationality in the decision of the Board.
12. When the applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on the latter’s decision.
13. In the present case, the Board in fact rejected the applicant’s appeal/ petition as it doubted the genuineness of the intention of his non-refoulement application. He told the Board that he just followed what other people had done to avoid loan repayment. It found that the creditor had no intention of killing the applicant or causing serious harm on him. Further and in any event, the Board found that state protection would be available to him.
14. As mentioned above, assessment of evidence, risk of harm, and availability of state protection are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.
15. The complaint raised by the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a regurgitation of what he told the Director and the Board.
16. Even on his own account, the past ill treatment was of low intensity and frequency. It came nowhere near the level of severity required to constitute torture or CIDTP. He did not report the incidents of assault and threatening to the local police or authorities. He just followed what other people did to avoid loan repayment leaving Vietnam for Hong Kong. There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled.
17. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.
Disposition
18. For the reasons given, there is no prospect of success in the applicant’s intended application. I refuse to grant leave to apply for judicial review.
Dated 28 January 2021
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(Chung Lai Fan, Christine) |
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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 28 January 2021
Tran Van Chung
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 28 January 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7701/17/7/82/V1515
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 984/17 (Formerly RBCZ 11859/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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