LE DUC HUU AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1896/2019

[2024] HKCFI 2469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1896 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The 1^st applicant and the 2^nd applicant were husband and wife and the 3^rd and the 4^th applicants were their children, respectively aged 16 and 2. They jointly filed Form 86 for their application for leave to apply for judicial review of the Decision dated 6 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^ND Decision”) dismissing their appeal against the decision of the Director of Immigration (“the Director”) dated 23 February 2017, by which the Director rejected their joint application for non-refoulement protection.

2.  The Court received an affirmation filed on 18 June 2024 from the 2^nd applicant representing herself and the 3^rd and the 4^th applicants to apply for withdrawal of their joint application.

3.  The Court fixed a hearing for the 1^st applicant to appear before it to clarify the position. The 1^st applicant appeared before the Court on 12 August 2024. He confirmed that he had divorced the 2^nd applicant. He is aware of the other applicants’ application for withdrawal of their claims and he has no objection to their application. However, he will continue with his application himself.

4.  In the affirmation of the 2^nd applicant, she said that it is now safe to return to Vietnam and she wants to return with the 3^rd and the 4^th applicants. There is nothing outstanding in this action as far as the 2^nd, the 3^rd and the 4^th applicants are concerned. I shall accede to their application and dismiss their joint application accordingly.

5.  Below, I shall deal with the 1^st applicant’s application. I shall call the 1^st applicant as the applicant.

The applicant

6.  The applicant, aged 42, is a Vietnamese. He entered Hong Kong as a visitor on 5 September 2013. He overstayed since 13 September 2013 and he surrendered to the Immigration Department on the same day. The applicant made a non-refoulement claim on 25 March 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had triad connections, because he failed to repay a loan owed to him. The applicant also claimed that he was persecuted by the principal (“the Principal”) of the college (“the College”) which he previously worked for.

7.  According to the applicant, he worked as a lecturer at the College since 2006. In about 2007, the applicant’s immediate supervisor discovered misappropriation of funds by the Principal. He and the applicant reported this to the relevant authorities, after which the Principal took revenge by demoting the applicant’s supervisor and deploying the applicant to teach in two schools that were far from his home. Furthermore, the applicant’s salary increase was delayed and was excluded from awards that he used to have. His application for further study was also refused.

8.  In early November 2011, the applicant was lured into buying a villa for resale by his uncle. As he did not have sufficient money, he took out a loan from the creditor on 10 November 2011. It turned out, however, that the resale fell through and his uncle refused to return his money. The applicant managed to repay the instalment from other sources of income until October 2012, when he finally ran out of money.

9.  Initially, the creditor and his underlings merely demanded money from the applicant through phone calls. In February 2013, the applicant was assaulted by four underlings of the creditor when he was coming home from the College on his motorcycle. They kicked him, slapped his face and punched him in the abdomen. The applicant did not seek medical attention for his injuries nor did he report the assault to the police.

10.  In March 2013, the creditor and five of his underlings came to the applicant’s home, where they assaulted the applicant and his wife. The creditor left after giving the applicant until 1 April 2013 to pay up. The applicant and his wife did not seek medical treatment as they only sustained bruises. Thereafter, the applicant received many phone calls from the creditor’s underlings reminding him of the payment deadline.

11.  The applicant could not mange repayment on 1 April 2013. On that day, the creditor made many phone calls to the applicant and his wife. When the applicant was on his way home, he was stopped by four underlings of the creditor. He managed to escape and called his wife, who then reported the matter to the police. Shortly thereafter, the applicant received a call from the creditor, who threatened to kill his whole family because his wife had made a report to the police against him. The applicant believed that the police informed the creditor about the report because they were bribed by him.

12.  The applicant then moved with his family to Hanoi, where they stayed with relatives and in hotels. After three months, they moved back to their hometown for the birth of the applicant’s second child, as this was where their household registration was. The child was born on 24 July 2013 and they moved back to Hanoi on 27 July 2013.

13.  On 15 August 2013, the creditor came to the applicant’s home in Hanoi with five of his underlings. Two of them took the children into another room while the other three together with the creditor kicked and punched the applicant until his face bled. One of them even held a knife to his throat. The applicant’s wife was also pushed to the floor when she tried to intervene. The applicant and his wife were then shown a video, in which the fingers of a debtor who owed money to the creditor were cut off. The applicant was then forced to sign a loan note, in which he was required to repay by 15 October 2013.

14.  Thereafter, the applicant received threatening phone calls from the creditor’s underlings around once every two days. Upon seeing that there was no solution to the matter, the applicant and his family decided to leave Vietnam. On 5 September 2013, they arrived in Hong Kong. The applicant’s mother also came to Hong Kong in November 2013 to seek protection because the creditor had threatened that she would be responsible for the loan if the applicant failed to repay. Meanwhile, the applicant was shown a summon by his mother that he was requested attendance at a police station in Vietnam to resolve a money dispute. He believed that the creditor had resorted to the police to locate his whereabouts.

15.  The applicant considered internal relocation not viable because the creditor would exhaust all possible means to locate him. He also believed that it would be difficult for him to get a job in major cities because he lacked the necessary financial capacity to pay a bribe. Meanwhile, the applicant was of the view that state protection mentioned in the country of origin information (“COI”) was merely theories, which in reality was another matter.

16.  Details of the applicant’s story can be found in paragraphs 6-22 of the Director’s Decision dated 5 March 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

17.  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”).

18.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the claimed physical and mental suffering failed to reach the requisite level of severity [44]-[56]; (ii) the applicant’s matter with the creditor and the Principal was private in nature with no evidence of state involvement [65]-[71]; (iii) the absence or low intensity and frequency of past ill-treatment from the creditor and the Principal indicated a small future risk of harm upon his return to Vietnam [72]-[80]; (iv) state protection would be available [81]-[85]; (v) internal relocation would be viable [86]-[92] and (vi) the applicant’s case failed to meet any of the requirements under BOR 3 risk [28], [93]-[94], Persecution risk [29], [95]-[98] or Torture risk [27], [99]-[100].

19.  In the Notice of Further Decision dated 23 February 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s 1^st Decision

20.  The applicant appealed the Director’s 1^st Decision to the Board. On 20 November 2015, the Board conducted a hearing.

21.  The Board found the applicant to be a credible witness [50]. The Board accepted that the applicant was subjected to violence and threats by the creditor and his underlings [54]. It also accepted that the applicant suffered discrimination in his workplace because he uncovered corruption of the Principal [56].

22.  Regarding the threat by the creditor, the Board considered it unlikely to be carried out [62]. Furthermore, the issue between the applicant and the creditor was purely a private matter with no evidence of state involvement or acquiescence [64]-[66]. In the meantime, although COI indicated a general risk of loan shark violence, the applicant’s own experience did not suggest that he faced a real and personal risk [72], [77]-[78]. As to the workplace discrimination, although the Principal was a public official, the action taken could not be said to amount to the infliction of severe pain or suffering [82]-[83].

23.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 3 risk or Persecution risk [4]-[14], [61]-[94]. Furthermore, internal relocation would also be viable according to COI [95]-[104].

24.  The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed.

The Board’s 2^nd Decision

25.  The Board received the applicant’s Notice of Appeal against the Director’s 2^nd Decision on 11 October 2017, when he was supposed to make the appeal on or before 11 March 2017 [8]. The applicant explained that his appeal was late because the letter was missing [9], but it was unclear what letter he was referring to [10].

26.  The Board considered the reason for lateness provided by the applicant was neither clear nor coherent [16]. As to the merits of the appeal, the applicant produced no new facts or materials [24], for which the Board considered that even if BOR 2 risk were taken into account in the Board’s 1^st Decision, the Board would have still made the same decisions and dismissed the applicant’s BOR 2 risk claim [27].

27.  Based on such findings, the Board found there were no special circumstances that would make it unjust to disallow the late filing [30].

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

28.  The applicant has filed Form 86 dated 8 July 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

29.  In the affirmation in support of his application, the applicant iterated his story for coming to Hong Kong without any specific reason to challenge the Board’s 2^nd Decision.

DISCUSSION

30.  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).

31.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he understood the Board’s Decision. He said he had nothing to say other than asking me to review the Board’s Decisions.

32.  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.”

33.  Since the Board’s 2^nd Decision is based upon the facts found by the Board in its 1^st Decision, it is only logical that the Board’s 1^st Decision should be taken into consideration as well. The Board accepted that the applicant would be subjected to violence and assaults by his creditor. But it considered that state protection would be available in Vietnam. The Board found:

“75. The COI referred to by the Director shows that corruption is a major problem in Vietnam. The police in particular are corrupt. However, it appears that steps have been taken particularly since 2011 to improve the situation. Various newspaper articles and other documents relate to action taken by the police in corruption or corruption-related cases.

76. From the evidence before me, it does not appear that the situation in Vietnam is such that the police generally know or have reasonable grounds to believe that acts of torture are being committed by loansharks, but fails to exercise due diligence to prevent, investigate, prosecute and punish them.

77. Further, even if this is the case, I am not satisfied that there is a real and personal risk of its happening in the Appellant’s case. …

78. I am not satisfied that there is a real, personal and present risk that if refouled the Appellant will suffer torture at the hands of Bui and/or his associates.

87. The situation is that law enforcement is generally not very good because of corrupt individuals within the law enforcement agencies. But, as I have indicated above, there needs to be more than that; there needs to be evidence to show that a personal risk to the Appellant. That is lacking here.”

34.  His fear of the principal’s harm does not amount to any of the applicable risks [93].

35.  Furthermore, the Board found that internal relocation is viable if he returns to Vietnam [85]-104].

36.  Based upon the reasons above, the Board dismissed his appeal against the Director’s 1^st Decision.

37.  In relation to the Board’s 2^nd Decision, it is clear that though the applicant’s notice of appeal was late for 7 months, the Board had taken into consideration of the facts in the Board’s 1^st Decision. It said that it would have made the same decisions if his BOR 2 risk claim were included in the Director’s 1^st Decision.

38.  The applicant has raised no valid ground to challenge the Board’s 1^st or the Board’s 2^nd Decisions.

39.  He therefore fails to show that there is any realistic prospect in his intended applicant for judicial review of the Board’s 2^nd Decision.

DISPOSITION

40.  Accordingly, I dismiss his application for leave to apply for judicial review of the Board’s 2^nd Decision.