CHU VAN BAC v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2633/2018

[2021] HKCFI 1105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2633 of 2018

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 8 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  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.

3.  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.

The applicant

4.  The applicant is a citizen of Vietnam. He came to Hong Kong illegally on 4 January 2015. The next day, he was arrested by police. He lodged his non-refoulement claim with the Immigration Department on 30 January 2015.

5.  He claimed that if refouled, he would be harmed or killed by his creditor because he was unable to repay the debt owed to him. He had borrowed 670 million Vietnam currency from a creditor, who was connected with the influential people like the village head. The money was to carry out his audio equipment business. He was unable to pay the interest and was threatened and assaulted by the creditor’s people. They had weapons. They had gone to his home and smashed the furniture. He had to leave Vietnam to be safe. Details of the incidents are set out in paragraph 6 of the Director’s report to be described below.

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 23 March 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the risk of being harmed or killed by the creditor if he returned to Vietnam was assessed to be low [10]; that state protection was available to him [18] and internal relocation was an option open to him [21].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision. He attended the hearing before the Board on 26 July 2018.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons as set out below.

(1) The Board found that the applicant gave inconsistent and conflicting evidence. [98]

(2) His evidence was also implausible and the Board found him to be not a witness of truth and his evidence was unreliable. [118-119]

(3) The Board did not believe that he ran a business of supplying audio equipment or that he had borrowed money for his business. [120]

(4) There was no evidence that the state was involved in this case. [122]

(5) Internal relocation was a viable alternative for the applicant. [170]

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 22 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmations in support of his application, he said that if he returned to Vietnam, his life would be in danger because the local authority, the loan shark and his underlyings could inflict more serious harm had they intended to do. He was unable to prove the risk of harm because he could not guess what would happen to him.

DISCUSSION

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

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  Since the Board does not accept his factual evidence, he has no factual basis in support of his claim. His grounds in support of his application do not assist him.

15.  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.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  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