NGUYEN VAN PHONG AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1933/2018

[2020] HKCFI 1856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1933 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.  The applicants are husband and wife, their two children, and the fifth named applicant is the mother-in-law of the 1^st applicant. All applicants rely upon the facts of the first applicant.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 27 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.  The first applicant appeared before the Court for himself and for other applicants.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended by deleting the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicants

5.  The applicants are a family. The second applicant son was given birth after the other applicants had come to Hong Kong. They came to Hong Kong on 27 April 2015 as visitors and were permitted to stayed until 5 May 2015. They overstayed and lodged a claim for non-refoulement. The applicant wife lodged the non-refoulement claim on behalf of the second applicant son.

6.  The applicant claimed that, if refouled, they would be harmed or killed by people from the Local Authority and a private company called Dai Duong Company (“DDC”) in Vietnam because of a business dispute with them. He was also afraid of being arrested by police of Vietnam on a fabricated charge.

7.  The events leading to the family’s departure from Vietnam for Hong Kong happened between 2013 and 2016.In late 2013, the applicant set up a clothing boutique in Phuong Nhat Tan market in Nhat Tan, Tay Ho District in Vietnam. The market was managed by the Local Authority and DDC. In October 2014, he was told by the Local Authority that the market would be reclaimed and renovated for commercial purposes and all the tenants including the applicant had to move their business to some unknown place. The applicant and other tenants refused to move and they complained to the Local Authority. On 11 December 2014, a fire broke out in the market and the goods of the tenants were destroyed. The applicant and other tenants were told that the fire was caused by an electric short circuit and there would not be any compensation for them. However, the applicant had, by chance, discovered that the fire was an act of arson by DDC. He raised it with the Local Authority together with other tenants.

8.  However, since he had raised the complaint, he was attacked by people he suspected to be those from DDC or the Local Authority. He had reported the matters to police, but the police took no action, which fortified his suspicion that the Local Authority was involved. He was attacked by two men on motorbike when he was riding his motorbike. He had sustained injury. When he was at home, there were two occasions when people threw stones at his house. He also learned that the police had fabricated a case of unlawful entry into the market and deliberate deception. He was scared and decided to leave Vietnam for Hong Kong together with his family.

The Director’s Decisions

9.  The Director considered their 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”).

10.  By Notice of Decision dated 9 August 2016 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated. The Director found that the level of risk if they returned to Vietnam was low [45]; that reasonable state protection was available to them [54] and that internal relocation was an option open to them [55].

11.  By Notice of Further Decision dated 11 July 2017 (“the Director’s Further Decision”), the Director rejected their BOR 2 risk claim because they had failed to establish this risk by evidence.

The Board’s Decision

12.  The applicants jointly appealed to the Board against the Director’s Decision and the Director’s Further Decision and they attended a hearing on 9 May 2018.

13.  By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decisions.

14.  The Board had taken the opportunity of asking questions from the applicant, the applicant wife and his mother-in-law and found that their evidence about a number of key aspects of their claims was inconsistent over time, and far from convincing [84] and that their evidence was embellished, exaggerated and fabricated in part to create a claim to be owed protection [123]. See the detailed reasons in paragraph 84-122 of the Board’s Decision. Below is a summary.

(1)  The applicant gave inconsistent evidence on the plan of renovation of the market and the termination of the leases.

(2)  He gave a different and inconsistent account of the events above when he answers of the Board.

(3)  He gave confused and inconsistent evidence about the issue of compensation and refund of losses incurred by the tenants.

(4)  He changed his evidence on compensation for the losses.

(5)  He gave inconsistent evidence about renovations after the fire.

(6)  He then changed his evidence on (5) above.

(7)  His evidence in his statement was different from his evidence given to the Board on renovation.

(8)  There were numerous inconsistencies and irregularities in the evidence of the husband and the wife.

15.  For the reasons set out in the Board’s Decision, the Board, rejected all the risks as claimed by the applicants.

Application for leave to apply for judicial review

16.  The applicants filed Form 86 on 14 September 2018 for leave to apply for judicial review of the Board’s Decision.

17.  In the applicant’s affirmation in support of their joint application, he did not set out any ground in support of their application. Nor did he say that the Board was in error in coming to its decision. He simply questioned whether it was fair for the Board to have come to its decision.

DISCUSSION

18.  The first applicant appeared before me and confirmed that he had had a fair interview with the immigration officer. However, he said that he did not have a fair hearing before the Board because he had made an application to the Adjudicator for an adjournment on the reason that his wife and mother-in-law were not feeling well and their evidence might not be accurate. He did not have any medical evidence in support of his application. The Adjudicator refused his application for adjournment and proceeded with the hearing. He has no other complaint about the hearing before the Board.

19.  I find that this ground cannot sustain for the reasons as follows:

(1)  he has not raised this ground in his affirmation in support of this application;

(2)  the Adjudicator’s decision of refusing the application for adjournment cannot be faulted because the applicant had produced no medical evidence in support of his application and he was unable to anticipate what questions the Adjudicator would put to his wife and his mother-in-law; and

(3)  it turned out that there were many inconsistencies in their evidence that the Board attached no weight to their evidence. See paragraph 14 above.

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

21.  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.”

22.  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.

23.  The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

24.  Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant them leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their 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