DINH CHINH BO v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1248/2018

[2021] HKCFI 3523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1248 of 2018

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

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 20 June 2018 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”), the matter is dealt with 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 citizen of Vietnam.  He last entered Hong Kong illegally on 21 December 2013 and was arrested by the police on 24 December 2013.  He lodged a non-refoulement claim on 29 December 2013.  After the commencement of unified screening mechanism, his claim was assessed on all applicable grounds. 

5.  The applicant claimed that if refouled, he would be harmed or killed by his creditor Pham.  According to the applicant, Pham was closely affiliated with the gangsters and he also bribed the local government for concealing his illegal activities.  On 3 March 2013, he borrowed 1 billion VND from Pham.  However, due to a typhoon, his fishing business failed and he was unable to repay the loan.  On 15 November 2013, as the applicant defaulted the repayment, Pham and some men damaged his house, took away his properties and imposed verbal threats.  On 25 November 2013, he was attacked by one of Pham’s followers and fainted.  He reported the incident to the police but of no avail.  As Pham continued to threatened him, out of fear, he fled to Hong Kong for protection.  Details of his story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 16-32 of the Board’s Decision.

The Director’s Decision

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

a.      risk of torture under Part VII C 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 30 January 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of risk of him being harmed or killed by Pham upon refoulement was assessed to be low [13]; that state protection was available to him [14]-[17] and that internal relocation was an option open to him [18]-[23].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  On 8 June 2018, he appeared before the Board and adopted all the materials in the hearing bundle placed before the Board.  The Board found that the dispute was monetary and private.  There was clear evidence that Pham did not intend to kill him.  For instance, after the applicant returned from the hospital, Pham and the followers came to demand the repayment without attacking the applicant.  Further, there was no evidence that the police were unwilling to assist the applicant.  Thus, the Board concluded that the treatments received by the applicant did not amount to the level as defined under Torture risk [35]-[42].  For the same reasons, the applicant’s claim on BOR 3 risk, BOR 2 risk and Persecution risk also failed [43]-[49].  In any event, internal relocation to cities like Ho Chi Minh, Hanoi or Mong Cai was an option open to the applicant [50]-[51].  Thus, the Board dismissed his appeal.

Application for leave to apply for judicial review

10.  The applicant filed Form 86 dated 3 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he reiterated that he would be killed if he returned to Vietnam.

DISCUSSION

12.  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).

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

14.  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.”

15.  He has submitted no valid ground to assist his application. 

16.  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.

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

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended 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