NGUYEN VAN NHUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 754/2019

[2022] HKCFI 856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 754 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 1 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 22 May 2014 and surrendered to the Immigration Department the next day.  He lodged a non-refoulement claim on 26 May 2014 (via a letter dated 20 May 2014).  It is noted that his son also surrendered to the Immigration Department on 4 November 2014 and lodged a non-refoulement claim on the same date.  Before the Director, the applicant’s claim was considered with his son’s claim.  While the applicant’s son also filed the appeal and appeared before the Board, he subsequently withdrew his appeal prior to the release of the Board’s Decision.  The applicant’s son also did not take out his application for leave to apply for judicial review before this court. 

5.  The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the city government’s officials and gangsters. According to the applicant, he successfully bid a ten-year license to excavate sea sand granted by the Vietnamese government in 2004, which required him to pay tax to the city government.  He then transferred the license to his ex-wife in 2005 but operated the excavation on her behalf.  In 2010, the applicant aimed at expanding his business and thus invited Nguyen Tien Phuong (“NTP”) and Pham Van Hong (“PVH”) to join his business.  Thereafter, the city government negotiated with the applicant for an early termination of the license with compensations to the applicant.  The applicant refused as the compensation was lower than the annual profit of the business.  In November 2011, around thirty men claimed to be from the city government came to his mining field to harass him.  His report to the police was of no avail.  Later in mid-2012, another group of men, who the applicant suspected to be the gangsters, visited the field again.  The applicant escaped to his brother’s house to avoid them.  In late 2012, another threat was imposed by another group of gangsters.  The applicant suffered no injuries from the above encounters. However, in mid-2013, the applicant and his son were attacked in the coffee shop near the field.  In fear of the gangsters, the applicant eventually fled to Hong Kong for protection.  His son claimed to be attacked four times in 2014 by the gangsters for the applicant’s whereabouts.  Details of the applicant’s claim were set out at paragraph 7 of the Notice of Decision dated 8 September 2016 by the Director (“the Director’s First Decision”) and paragraphs 9 to 18 of the Board’s Decision as described below.     

The Director’s Decisions

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

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   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”);

(3)   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

(4)   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 the Director’s First Decision, the Director refused his claim on the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of him being harmed or killed upon refoulement was assessed to be low [10]-[14]; that state protection was available to him [15]-[17]; and that internal relocation was an option open to him [18]-[20].  In the Notice of Further Decision dated 15 August 2017 (“the Director’s Second Decision”), the Director also rejected the applicant’s BOR2 risk for the reason that there was no evidence to show that the applicant’s right of life under BOR 2 would be violated upon return to Vietnam.

8.  The Director’s First Decision and the Director’s Second Decision will be referred to as “the Director’s Decisions”. 

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board.  The Board scheduled oral hearings which were held on 27 August 2018, 3 October 2018 and 7 November 2018 respectively.  The applicant was legally represented and gave oral evidence before the Board [7]. 

10.  The Board considered the applicant’s evidence and the supporting documents.  It observed the following inconsistencies in the material aspects of his claim: first, the applicant did not submit the transferal document showing that he had transferred the license to his ex-wife; second, it was suspicious as to why his ex-wife would continue operating the mining field with him when they were in the process of divorce in 2005; third, the letter of invitations for negotiating the early termination of the license were all issued to his ex-wife with only one addressing to him as the project manager. The Board considered that only the license holder, i.e., his ex-wife, could negotiate the license with the city government; fourth, there was no reason why the city government could not get back the mining field via legitimate methods; and finally the license was expired on 31 August 2014 and it was not necessary for the city government to resort to using the gangsters to take the land back [31]-[38].  Without cogent explanations to clarify the inconsistencies from the applicant, the Board rejected his version of events.  In any event, state protection was available to the applicant [41].  For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed his appeal.   

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he enclosed the documents of the Immigration Department, the Board’s Decision and the hearing bundle without setting out any specific ground in support of his application.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  The Board had given its reasons above to discredit the applicant’s evidence. The applicant has not raised any valid ground to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave for the applicant apply for judicial review.  Accordingly, I dismiss his application.

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