TO QUANG NGUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2261/2019

[2024] HKCFI 3717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2261 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 July 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 asked for a hearing. However, he was absent at the hearing on 4 December 2024. I shall deal with his application on paper.

The applicant

3.  The applicant, aged 48, is a Vietnamese. He last entered Hong Kong illegally on 15 June 2013. He was arrested by the police on 5 July 2013 and was sentenced to imprisonment of 22 months on 16 October 2013. The applicant first made his non-refoulement claim on 8 October 2014. Thereafter, he was arrested a number of times for committing various offences. The applicant made written representations for his claim on 14 February 2018, 23 February 2018 and 15 March 2018 respectively. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”). He also feared that he would be unable to receive proper treatment for his AIDS upon return to Vietnam.

4.  According to the applicant, in around September 2011, he borrowed money from a bank by mortgaging his house and took out a separate loan from the creditor in order to buy a boat and fishing net. Subsequently, his boat was destroyed in a storm. A few days thereafter, the creditor came to the applicant’s house with his underlings demanding repayment. The creditor agreed to give the applicant a grace period to repay, but threatened to find a way to deal with him if he still failed repayment. Worried about his safety, the applicant relocated to Mong Cai. After another 3-4 months, he sneaked into Mainland China and eventually entered Hong Kong illegally on 15 June 2013.

5.  The applicant feared that he would be abused by the creditor upon return to Vietnam. He also had concerns that the bank might forfeit his house due to his loan default. He further worried that he would be unable to receive proper treatment for his AIDS upon return to Vietnam.

6.  The applicant was informed that the creditor was still looking for him. He was of the view that he could not seek protection from the police because they were corrupt and they would not intervene in financial dispute anyway. He also claimed that he would not receive proper AIDS treatment due to lack of money. The applicant ruled out internal relocation as well because of his financial and health condition.

7.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 13 December 2018 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk. The Director found that: (i) the lack of past ill-treatment from the creditor indicated a small future risk of harm upon the applicant’s return to Vietnam [20]; (ii) the applicant’s claim that he would be unable to receive proper treatment for AIDS was without basis because evidence showed that the Vietnamese government had implemented measures to sustain the funding of its HIV and AIDS programme [21]; (iii) the credibility of the applicant was in doubt given the inconsistencies of his evidence [22]; (iv) state protection would be available [24]-[26] and (v) internal relocation would be viable [27]-[29].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 17 May 2019, the Board conducted a hearing.

11.  The Board considered the problem faced by the applicant was purely private. Upon consideration of the country of origin information (“COI”), the Board found that state protection would be available and that the Vietnamese government had also made positive progress in continuation of its HIV/AIDS programmes. Given further that the applicant had never suffered any injury from the creditor and that there was also no evidence of state involvement in the matter, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [3]-[27], [50]-[87].

12.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

13.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

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 the Board’s 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 Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

19.  There is no reason that the Court should interfere with the Board’s finding of the facts.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.