TRINH VAN LOC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1786/2019

[2024] HKCFI 2312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1786 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. However, he was absent at the hearing on 3 July 2024 without prior notice to the Court. I shall deal with his application on paper.

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

The applicant

4.  The applicant, aged 55, is a Vietnamese. He entered Hong Kong illegally on 3 December 2015 and he surrendered to the Immigration Department on 4 December 2015. The applicant made a non-refoulement claim on 4 May 2017. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”) because he failed to repay a loan owed to him.

5.  According to the applicant, he was a construction worker and was also responsible for recruiting workers on behalf of the company he worked for. In about 2014, his employer absconded with company funds without paying wages to the workers recruited by the applicant. The applicant therefore borrowed money from the creditor in order to pay wages to them. Between June 2015 and August 2015, the applicant could not afford paying monthly instalments to the creditor due to cash flow difficulties. One day in September/October 2015, the creditor and his underlings visited the applicant’s workplace demanding loan repayment. As the applicant failed to repay, they pushed him onto the ground and verbally threatened to kill him. Although the assault incident was reported to the police, no follow-up action was taken by them.

6.  The new boss of the company advised the applicant to leave Vietnam for his safety and arranged him to Mong Cai to meet his friend. After around half a month, the new boss told the applicant that the creditor was still looking for him at his workplace. The applicant therefore left Vietnam for China on 1 December 2015. On 2 December 2015, he sneaked into Hong Kong from Shenzhen.

7.  The applicant did not maintain contact with his wife and children, but learnt from his friends that they had relocated elsewhere due to the harassment by the creditor. The applicant was of the view that he could not seek protection from the police because they were corrupt and colluded with the creditor. He also considered internal relocation not viable because the police would be able to track his whereabouts and inform the creditor.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 15 January 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that there were inconsistencies regarding the purpose of the loan and the debt collection incidents. The Director also failed to understand why the applicant, as an employee, had to pay wages to other workers by taking out a loan [12].

11.  The Director therefore had doubts towards the credibility of the applicant [13]. In any event, (i) the low frequency and intensity of past ill-treatment from the creditor indicated that the risk of harm was not as imminent as he claimed and that there was no evidence showing involvement from the Vietnamese authorities [15]; (ii) state protection would be available to him [16]-[24]; (iii) internal relocation would be viable [25]-[31] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [32]-[38], Persecution risk [39]-[43] or Torture risk [44]- [47].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 18 April 2019, the Board conducted a hearing.

13.  During the hearing, the applicant claimed that the one absconded was a supervisor, but the employer claimed that it had discharged its duty by paying wages to the supervisor [27], [29]. As the applicant was harassed by the workers recruited by him, he therefore took out a loan from the creditor to pay their wages. The Board found such explanation unsatisfactory because the employer rather than the applicant should be responsible for their wages. In any event, there was also no contractual relationship between the applicant and those workers [32].

14.  Upon considering the applicant’s evidence, the Board did not accept that (i) the applicant was indebted to the creditor [35]; (ii) the applicant was assaulted due to his inability to repay the loan [42] and (iii) the creditor had extensive power and network in Vietnam or that he had the resources to locate the applicant anywhere within the country [43].

15.  The Board found the overall evidence given by the applicant not credible [47]. Even if assuming that the applicant owed debt to the creditor and had been assaulted, the claimed injuries he suffered was not serious, indicating a low future risk of harm upon his return to Vietnam [59]. Furthermore, the dispute between the applicant and the creditor was also purely private in nature [63].

16.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [51]-[63], [76]-[96]. In any event, state protection and internal relocation would also be available to him according to the country of origin information [64]-[75], [97]-[104].

17.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

18.  The applicant has filed Form 86 on 27 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

19.  In her affirmation in support of her application, the applicant reiterated the reasons for coming to Hong Kong without specifying any ground to challenge the Board’s Decision.

DISCUSSION

20.  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).

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

22.  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.”

23.  The applicant is not able to raise any valid reason to challenge the Board’s Decision above. There is no reason for this Court to interfere with the Board’s finding of the facts.

24.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.