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HCAL 466/2019
[2021] HKCFI 175
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 466 OF 2019
BETWEEN
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Nguyen Van Tuoi |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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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 1975, is a national of Vietnam. On 10 June 2015, 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 [3-17] 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 650 million Vietnamese Dong he borrowed from a loan shark in 2000. He borrowed the money to establish his farm business. The business closed down in May 2003. He was unable to repay the debt. He had been on 3 occasions in 2003 and 2004 assaulted and threatened by his creditor that he would be killed if he could not repay the debt. He fled from his village to live in various cities and towns in Vietnam. However, his creditor could still locate him and beat him up. He last moved to a city in May 2013 where he stayed for 2 years working as a delivery worker. He remained there uneventfully. When he learnt from friend that he could obtain protection in Hong Kong, he decided to leave Vietnam for Mainland China by bus and then sneaked into Hong Kong unlawfully.
The Director’s decision
4. By a notice of decision dated 13 January 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 17 December 2018.
6. By a decision dated 11 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 claimat para [44-54; 64-65] of its decision. In a nutshell, the Board found that the case arose from a private money dispute [53]. The creditor merely wanted the applicant to repay and had no intention to kill him or causing serious harm on him [50]. The ill-treatment in the alleged incidents did not attain a minimum level of severity [52]. Furthermore, state protection is available to him [64] and local relocation is a viable option [69].
Application for leave to apply for judicial review
8. The applicant filed a Form 86 on 19 February 2019 for leave to apply for judicial review of the decision of the Board.
9. In the Form 86, the applicant did not set out any grounds of review. In his affirmation in support, he said he had not repaid his debt yet and his life was insecure. He asked the court to help him.
10. 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 did not take issue with the applicant’s claimed primary events. It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled. Further and in any event, the Board found that state protection would be available to him and internal relocation is a viable and reasonable option for him.
14. As mentioned above assessment of evidence, risk of harm, availability of state protection and internal relocation 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 application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a request for rehearing of the appeal. There is no reasonably arguable basis to challenge the findings of the Board.
16. Even on the applicant’s own account, the past ill treatment was of low intensity. It did not reach 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 had lived in a city uneventfully for 2 years before he left Vietnam. There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled. The decision of the Board is eminently reasonable.
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
Nguyen Van Tuoi
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 5968/17/1/252/V890
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2814/16 (Formerly RBCZ 11986/15)
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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