TRAN VAN THAO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.   Form 86 be amended, naming only the Torture Claims Appeal Board/Non-refoulement Claims Petition Office as the Putative Respondent and the Director of Immigration as the Putative Interested Party.

2.   The application herein for leave to apply for judicial review be dismissed.

Observations for the Applicant:

Introduction

1.  By Form 86 filed on 7 February 2022, the Applicant seeks leave to apply for judicial review (the “Leave Application”) of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 28 January 2022 (the “Board’s Decision”). By that decision, the Board confirmed the decision of the Director of Immigration dated 30 March 2021 (the “Director’s Decision”), which had rejected his non-refoulement claim on all applicable grounds under the Unified Screening Mechanism (USM).

2.  The Applicant’s background, the basis of his claim and the arguments he advanced had been set out in detail in the Board’s Decision. It is not necessary for me to repeat the same here. Unless otherwise specified, the abbreviations and descriptions used in the Board’s Decision, the hyperlink[1] to which is included below, are also adopted herein.

3.  The Applicant did not attend the oral hearing. I have considered the Leave Application based on the materials available before me. [2]

Discussion

4.  Judicial review does not operate as a further avenue of appeal. The Leave Application operates as a “filtering” process and there is no requirement or expectation to give elaborate reasons for my decision. The primary decision makers are the Director of Immigration (the “Director”) and the Board. Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence, country of origin information (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 error of laws, procedural unfairness or irrationality in the decision of the Board. [3]

5.  In seeking to challenge the Board’s Decision, the Applicant ought to have clearly and precisely identified the grounds relied upon in the Form 86 and in his supporting affirmation.[4] As matter stands, the Applicant only included the ground that the Board Decision has been reached unfairly without allowing him an opportunity to clarify his case and situation in his country.

6.  I have scrutinized the Board’s Decision and come to the view that the purported ground identified by the Applicant cannot be established or considered as valid or effective public law ground.

7.  First, the ground merely consists of general assertions without particulars. The same cannot assist the Applicant. [5]

8.  In particular, I do not agree that the Applicant was not given an opportunity to clarify his case. He attended the oral hearing before the Board and confirmed the accuracy and truthfulness of the documents submitted by him. He also chose to answer questions raised by the Board and therefore had more than sufficient opportunity to clarify his case. The Board was acutely aware of his claim that he was in fear of being ill-treated or even killed by his creditor i.e. Hung and his subordinates upon his return to Vietnam.

9.  Second, the Board had assessed the material facts and evidence of the Applicant’s claim including the COI materials. The Board was of the view the evidence of the Applicant was incredible and unreliable such that there was no solid basis to consider his claim. The Board was therefore entitled to find that (1) Hung and/or his group of men had never really intended to cause serious harm on the Applicant or to kill him; (2) there was insufficient evidence to establish any foreseeable and real risk of severe harm on the part of the Applicant upon refoulement; (3) state protection is available and (4) internal relocation is viable.

10.  Third, in all circumstances, I can discern no error of law or procedural unfairness or irrationality on the part of the Board in the assessment and rejection of the Applicant’s claim. The Board was entitled to come to the conclusions it did and reject his claim.

Conclusion

11.  Accordingly, I am not satisfied that the Applicant’s intended application for judicial review of the Board’s Decision is reasonably arguable with any realistic prospects of success.[6] I dismiss the 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