DO VAN HONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2148/2019

[2025] HKCFI 278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2148 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 3 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Notice of Further Decision on his BOR 2 claim (“the Board’s 2^nd Decision”). There is another decision dated 22 June 2016 of the Board (“the Board’s 1^st Decision”), which dealt with the applicant’s appeal against the Director’s Notice of Decision dated 30 March 2015 (“the Director’s 1^st Decision”) on Torture risk, BOR 2 risk and Persecution risk. Since these 2 Board’s Decisions rely on the same set of facts, this Court will consider the Board’s both Decisions in this Judgment.

2.  The applicant did not ask for a hearing. I shall deal with his application on the papers.

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 64, is a national of Vietnam. He has made a non-refoulement claim by way of an undated written signification, which was received by the Immigration Department on 17 September 2014 on the basis that, if refouled, he would be harmed or killed by his creditor Mr. Nguyen Duc Ngoc (“Nguyen”) because he was unable to repay his 2 loans.

5.  According to the applicant, in December 2011, he borrowed a loan of 2 billion Vietnamese Dong from Nguyen for his motorbike business. In 2012, he borrowed another loan of 1 billion Vietnamese Dong, However, his business was not running well and he was unable to repay the loan or interest. On 3 occasions in January, February and March 2013, Nguyen brought with him several subordinates to his house. Upon his failure to repay the loan, they hit him with a plastic hammer and wooden sticks. As a result, he was injured with bruises and swellings, for which he had to receive medication in hospital. He had reported the cases to police, which took no investigation. After staying for a short period in his sister’s home in Ha Noi, in February 2014, he left Vietnam for Hong Kong. On 25 August 2014, he was arrested by police as an illegal immigrant. In September 2014, he lodged a non-refoulement claim. He considered that the state would not be able to protect him and internal relocation was not viable.

6.  Details of the applicant’s story can be found in paragraph 6 of the Director’s 1st Decision.

The Director’s Decisions

7.  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”);

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”); and

8.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk for the reasons that (i) Mr. Nguyen and his men did not have real intention to cause serious harm, or to kill him upon his return to Vietnam [13]; (ii) his assertion that Nguyen could locate him wherever he would be was unfounded [14]; (iii) state protection would be available to him [15]; and (iv) internal relocation was viable [16].

9.  By way of the Director’s 2^nd Decision, the Director refused the applicant’s claim on BOR 2 risk because he had not produced any additional facts and materials to support his claim on BOR 2 risk.

The Board’s Decisions

The Board’s 1^st Decision

10.  The applicant appealed the Director’s 1^st Decision to the Board. On 21 March 2016, the Board conducted a hearing. The applicant had given oral evidence before the Board. Having considered the evidence, the Board dismissed the applicant’s appeal as it found that:

“17. Judging from the behaviour of Mr. Nguyen in these three incidents, it is reasonable to conclude that he was just exerting pressure on the Appellant to repay the debt owed to him, by inflicting pain on him, but not to cause him gracious [grievous] bodily harm, or to kill him, despite amply time and opportunities were available to him. In light of the availability of state protection and internal relocation alternatives as assessed below, I assess that the Appellant’s feared ill-treatment is unlikely to materialize.”

The Board’s 2^nd Decision

11.  The applicant had also appealed the Director’s 2^nd Decision to the Board. The Board conducted a hearing on 10 April 2019 where the applicant attended. Having considered the evidence, the Board found that the applicant’s evidence was unreliable [14] and the applicant had not made out a case under BOR 2 risk [20].

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

12.  The applicant has filed Form 86 dated 26 July 2019 for leave to apply for judicial review of the Board’s 2^nd Decision.

13.  In his affirmation in support of his application, the applicant did not raise any specific ground to challenge the Board’s 2^nd Decision.

DISCUSSION

14.  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).

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

16.  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.”

17.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decisions.

18.  There is no reason that the Court should interfere with the Board’s finding of the facts.

19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

20.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.