NGUYEN ANH CUONG v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1780/2018

[2020] HKCFI 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1780 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 6 April 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 6 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (1)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 27 November 2019.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replacing it by the Director of Immigration (the “Director”) as the interested party.

The applicant

4.  The applicant is a Vietnamese national. He is a subject of deportation order for life since 2001. He came to Hong Kong on 30 October 2010. He committed criminal offences and was sentenced to 64 months’ imprisonment.  On 24 March 2014, he lodged a non‑refoulement claim.

5.  He claimed that if refouled, he would be harmed or ill-treated by Vietnamese police. He was a boat person in Hong Kong and was subsequently returned to Vietnam in 1989. He was detained in the detention centre. However, he disobeyed the detention order and escaped from the detention centre. He was arrested and put back in the detention centre where he was beaten up by the officers and the inmates. He sought assistance from the human rights activist and they formed a group to make protest to the government. He was arrested by police and put into prison where he was ill-treated. He was beaten up, so badly that his front teeth were knocked off. However, he escaped and came to Hong Kong illegally.

The Director’s Decisions

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

a.     risk of torture under Part VIIC 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 2 June 2016 and Notice of Further Decision dated 5 July 2017 (the “Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [36]; that it did not accept that there was any official involvement or acquiescence in his case [41] and internal relocation was an option open to him [43]. His claim for BOR 2 risk was not established.

The Board’s Decision

8.  The applicant appealed to the Board and appeared before the Adjudicator.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

10.  The Board considered the applicant’s evidence and it found that the applicant was dishonest and unreliable and he failed to establish his claim of substantial risk of severe ill-treatment or injury or serious harm [9].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 30 August 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 the Board was unfair because he had given oral evidence before the Board, telling the adjudicator that he was beaten up and his teeth were knocked off by the police officers when he was arrested for protest. The Board did not take this into consideration.

DISCUSSION

13.  The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

14.  As the Board did not accept his evidence, he has no factual basis in support of his application.

15.  As to his complaint that the Board did not consider his ill-treatment by the police officers when he was arrested for protest, the Board had taken this issue into consideration in paragraph 7 of the Board’s Decision. It held that there was no documentary or other objective evidence to prove his injury, which, coupled with other evidence demonstrating that he was not an honest or reliable witness such as that he did not raise his claim for protection immediately arriving in Hong Kong, not until three and a half years after his arrival, it did not accept his evidence. The Board was entitled to take those factors into consideration when it assessed his credibility.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant him extension of time to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

19.  It is further directed that:

a.     If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

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