PHAN VAN DUNG v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1783/2018

[2020] HKCFI 807

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1783 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 30 April 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)      When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)      The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)      If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)      Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 30 April 2018 of the Torture Claims Appeal Board/Non‑refoulement Claims Petition Office (the “Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV 8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 26 November 2019.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Court, on its own motion, amended Form 86 by deleting the Director as the respondent and by adding the Director of Immigration (the “Director”) as the interested party.

The applicant

4.  The applicant is a Vietnamese national. He came to Hong Kong on 6 September 2014 illegally and was arrested by police on the same day. By written representations respectively dated 11 September 2014 and 24 September 2014, he raised a non‑refoulement claim.

5.  He claimed that if refouled, he would be harmed or killed by his creditor, Vinh and his people because he was unable to repay the loan. He had incurred a gambling debt from Vinh in a total sum of HK$170,000. Vinh had sent his people to his home for payment. He was unable to pay. On the first occasion, he was slapped. On the second occasion, they came with weapons. One of them cut part of his left middle finger with a knife. They also threatened to kill him. He was sent to hospital for treatment. He moved to live in his friend’s house and he paid $6,000 to an agent for his arrangement to come to Hong Kong.

The Director’s Decisions

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 15 July 2016 and Notice of Further Decision dated 1 March 2017 (the “Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the risk of harm if he returned was low [11]; that state protection was available to him [14] and internal relocation was an option open to him [20]. His claim for BOR 2 risk was not established.

The Board’s Decision

8.  The applicant appealed to the Board and appeared before the Adjudicator.

9.  By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions.

10.  The Board considered the applicant’s evidence and it found that the cutting part of the applicant’s left middle finger did not amount to torture [46]; that section 37U of the Ordinance did not apply to his case [48]; that state protection was available to him [58] and finally that relocation was an option open to him [59].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 dated 30 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he repeated his reasons for leaving Vietnam. He did not say what errors the Board had committed in coming to its decision.

DISCUSSION

13.  The applicant appeared before me and he confirmed that he was treated fairly before the immigration officer and the Adjudicator of the Board.

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  Although I have reservation on the Board's opinion that severing part of the applicant's left middle finger does not amount to torture [46], I find that even if I hold a difference view on this issue, the applicant still does not have any reasonable chance of success in his intended application for judicial review because the option of internal relocation is open to him, as found by the Board.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant him extension of time to apply for leave to apply for judicial review. Accordingly, I dismiss his application.

18.  It is further directed that:

a.     If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.     When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.     The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.     If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.     Liberty to apply.

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