TRAN VAN TUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 348/2021

[2024] HKCFI 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 348 of 2021

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 5 March 2021 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 entered Hong Kong illegally from Mainland China on 24 January 2019. He was arrested by the Immigration Department on 27 March 2019 for overstaying and for using a forged identity card. On 29 March 2019, he was sentenced to imprisonment of 20 months for the said offences. The applicant made a non-refoulement claim on 16 March 2020 and 23 March 2020. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditors (“the creditors”) and their underlings because he failed to repay a loan owed to them.

4.  According to the applicant, he borrowed money from the creditors, who had triad background, to startup his pig breeding business in 2017. His business went smoothly in the beginning, but in May 2018, all his pigs died due to sickness. As a result, the applicant was no longer able to repay his loan instalments.

5.  In August 2018, the creditors sent ten of their underlings to the applicant’s home to collect money. As the applicant was unable to pay, they assaulted him with knives and iron rods. The applicant suffered injuries to his head as well as his legs and eventually lost consciousness. He was then taken to hospital, where he stayed for two months. Although the applicant reported the assault to the police, no follow up action was taken by them.

6.  Around two days after his report to the police, four strangers came threatening to kill him if he still failed to repay the loan. Upon the applicant’s discharge from hospital, he relocated away from his hometown and stayed at his friend’s home for three months. On 22 January 2019, the applicant left Vietnam and eventually sneaked into Hong Kong via Mainland China on 24 January 2019.

7.  The applicant was of the view that he could not seek protection from the police because they had connections with the triad including the creditors and the police would simply request him to repay. Meanwhile, the applicant also considered internal relocation not viable.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 25 September 2020 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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

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

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment from the creditors and their underlings indicated that they had no real intention to seriously harm or kill the applicant [11] - [12]; (ii) state protection would be available to him [14] - [16]; (iii) internal relocation would be viable [13], [17] - [18] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19] - [23], Persecution risk [24] - [29] or Torture risk [30] - [32].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 25 November 2020, the Board conducted a hearing.

12.  The Board considered the account of events given by the applicant were credible [29]. However, it found that the past action taken by the creditors and their underlings indicated that they had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent and substantial as he claimed [32] - [35]. Furthermore, the loan dispute between the applicant and the creditors were private in nature, with no evidence showing involvement from the Vietnamese authorities [39] - [46]. In any event, state protection would also be available according to the country of origin information [48] - [56].

13.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [23] - [28], [57] - [89]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

14.  The applicant has filed Form 86 dated 15 March 2021 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of his application. The applicant enclosed a copy of the Board’s Decision without setting out any specific ground.

DISCUSSION

16.  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).

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

18.  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.”

19.  The Board accepted the applicant’s evidence. Having considered the applicant’s evidence and the COI, the Board took the view that the applicant will not be subjected to harm or be killed if he returns to Vietnam. On the evidence, I do not find the Board’s view to be Wednesbury unreasonable. The applicant has failed to raise any reason to challenge the Board’s Decision.

20.  There is no reason for this Court to interfere with the Board’s finding of the facts or its view.

21.  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

22.  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