HOANG QUOC VIET v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1642/2019

[2024] HKCFI 1917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1642 of 2019

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 present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 31 May 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant

3.  The applicant, aged 38, is a Vietnamese. He last entered Hong Kong illegally from Mainland China on 16 May 2013 and was arrested by the police as an illegal immigrant on 23 May 2013. On 12 June 2014, the applicant made a non-refoulement claim. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had connections with both the triads and the government, because of a debt owed to him.

4.  According to the applicant, he started his coal trading business in 2010. Around February 2011, he intended to expand his business and therefore took out a loan from the creditor. His business however declined in around May 2012 due to the decline of the economy of Vietnam and he had to close down his coal business. As a result, the applicant could no longer afford the loan repayment.

5.  One day in June 2012, the creditor went to the applicant’s house demanding loan repayment. He also threatened to harm him severely if he failed to convince his parents to transfer his family house (“the family house”) to him for settlement of the loan. In October 2012, the creditor returned with five of his underlings. The applicant was beaten up by the creditor’s underlings when he told the creditor that his parents refused to transfer the family house. The applicant was slapped, punched and kicked in the face, abdomen and back.

6.  Two police officers came half an hour after the creditor and his underlings left. The applicant reported the assault to them, but was told that they were unable to assist because this was a private matter and that the creditor was connected to the triad and the government. The police officers even demanded money from the applicant for attending the scene.

7.  A week later, the creditor and eight of his underlings went to the applicant’s home again. When the applicant told the creditor that his parents still refused to transfer the family house, they started to beat him up. One of them even stabbed his left chest with a knife. The assault stopped when they saw the applicant bleeding and the creditor left after threatening the applicant that he would be killed if his parents still refused to transfer the family house. The applicant was then admitted to hospital, where he stayed for two weeks. Two days later, a police officer came to his bedside in the hospital suggesting him to settle the debt and that he should convince his parents to transfer the family house to the creditor. The police officer also demanded money from the applicant for taking statement.

8.  Due to the intensity of threat posed by the creditor, the applicant decided to leave Vietnam for Hong Kong after his discharge from the hospital. He sneaked into Hong Kong for the first time on 2 December 2012 and was arrested by the police on 4 December 2012. On 3 January 2013, the applicant was repatriated. After his repatriation, the applicant relocated among the homes of his three friends in Mong Cai and Quang Ninh. On 14 May 2013, the applicant set off for Hong Kong again. He entered Hong Kong illegally via Mainland China on 16 May 2023 and was arrested by the police on 23 May 2013.

9.  The applicant maintained contact with his family since his arrival in Hong Kong. When he last contacted his parents in June 2017, they told him that the creditor was still coming to his home every two weeks enquiring his whereabouts.

10.  The applicant was of the view that he could not seek protection from the police because he could not afford bribing them. The applicant considered internal relocation not viable as well because the residential permit requirements in Vietnam would allow the creditor to locate him given his connections with the authorities. Furthermore, he had no relatives and would also have difficulty securing employment elsewhere within the country.

11.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 17 August 2017 (“the Director’s Decision”).

The Director’s Decision

12.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

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”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) his delay in seeking non-refoulement protection indicated that his perceived risk of harm was not as imminent as claimed [20]; (ii) the low intensity and frequency of past ill-treatment from the creditor indicated he had no real intention to harm or kill the applicant, so that he would not face a real risk of harm [21] - [22]; (iii) state protection would be available to him upon his return [23] - [32]; (iv) internal relocation would be viable [33] - [40] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [41] - [46], Persecution risk [47] - [53] or Torture risk [54] - [56].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 2 April 2019, the Board conducted a hearing.

15.  During the hearing, the applicant made new claims that he received threats from the creditor over the phone between June 2012 and October 2012 [15]. He also claimed that his wife had been assaulted by the creditor [27].

16.  The Board found the applicant’s account of events contained numerous inconsistencies and that the claimed events were neither coherent nor credible, particularly in relation to the startup investment and the operation cease date of his coal business, circumstances for obtaining the loan from the creditor, and events that happened in or around the three encounters with the creditor at his home [29] - [30].

17.  Furthermore, some of the applicant’s claims were against simple logics and common sense: (i) knowing the creditor’s triad connection only after taking out the loan despite being friends with him for over three years beforehand; (ii) the creditor was willing to wait four months between June 2012 and October 2012 without taking any serious action; (iii) no threat was made to the applicant’s parents directly despite they were the owners of the family house; (iv) the applicant did nothing to avoid his predicament despite being warned by the creditor when he would come back; (v) the applicant voluntarily requested to be repatriated to Vietnam instead of seeking protection in his first trip to Hong Kong and (vi) his claimed threat from the creditor was first mentioned in his non-refoulement claim form in July 2017, which was more than four years since his arrest by the police for illegally remaining [31] - [39].

18.  Based on such findings, the Board found the core of the applicant’s story unreliable and unlikely to have actually taken place [40]. It concluded that the applicant’s case failed to meet any of the requirements under Torture risk [41] - [53], Persecution risk [54] - [56], BOR 2 or BOR 3 risk [57] - [60]. In any event, state protection and internal relocation were also available to the applicant according to the country of origin information [44] - [46], [51] - [52].

19.  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

20.  The applicant has filed Form 86 on 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

21.  In the affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

22.  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).

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

24.  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.”

25.  For the reasons given by the Board above, the Board rejected the applicant’s evidence in support of his claim. 　The applicant has raised no valid reason to challenge the Board’s finding of the facts.

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

CONCLUSION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. 　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