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

HCAL 2859/2018

[2020] HKCFI 1860

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2859 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

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 7 December 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”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended by deleting the Director of Immigration (the “Director”) as proposed respondent and by adding the Director as interested party.

The applicant

4.  The applicant is a Vietnamese national.  On 22 June 2017, he was arrested for illegal entry into Hong Kong.  His non‑refoulement claim was regarded as lodged on 12 April 2017.

5.  He claimed that if refouled, he would be harmed or killed by his creditor.  He had borrowed a large sum of money from a loan-shark in Vietnam.  He was unable to pay the debt.  He was repeatedly beaten up by the loan-shark and was threatened with death.  The detailed facts are set out in paragraphs 53-77 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 VIIC 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 20 December 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the risks he alleged if he returned to Vietnam was low [11]; that state protection would be available to him [13] and internal relocation was an option open to him [14].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision.  He appeared before the Board on 3 December 2018.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision for the reasons below.

a.The Board dismissed his claim that the loan-shark advanced him a large amount of money as he claimed [90].

b.The Board considered that he was making up his story as the oral hearing progressed [114].

c.The Board did not accept that he had borrowed any loan from the creditor; that he was assaulted or threatened by the creditor; that he was under any danger in his home country or would be in any danger if he returned to his home country [156].

d.The Board considered that he might relocate internally [172].

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he stated that if he returned to Vietnam, his creditor would not spare him because he was unable to pay the debts.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

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.  The Court does not find any error of law or procedural unfairness in it. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

16.  I 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