NGUYEN QUANG SON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 447/2020

[2024] HKCFI 2520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 447 OF 2020

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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 1 February 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 asked for a hearing. He appeared before this Court on 22 July 2024.

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 48, is a Vietnamese. He entered Hong Kong illegally on 26 February 2016 and was arrested by the police on 22 March 2016. The applicant made a non-refoulement claim on 6 May 2016 and 13 May 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who was a triad member, because he failed to repay a loan owed to him.

5.  According to the applicant, in June 2013, he borrowed money from the creditor to startup his laundry business. By June 2014, the applicant was no longer able to repay the monthly instalments to the creditor due to poor business. Starting from August 2014, the creditor and his underlings came to demand loan repayment from the applicant every week. They would threaten him verbally and throw bricks/stones at his house. In September 2014, the applicant reported the matter to the police after the creditor came over demanding loan repayment. Yet, the police refused to accept his case as they regarded it as a private matter. In November 2014, the creditor and two of his underlings came again. Upon knowing that the applicant was unable to make repayment, the creditor broke a cup and left. Thereafter, the creditor sent his underlings to break the glass windows of the applicant’s house by throwing stones on a number of occasions.

6.  In October 2015, the applicant encountered an underling of the creditor, who pulled him off his motorcycle. He then pointed a gun at the applicant’s forehead and threatened to kill him if he failed to repay the loan. The applicant then reported the case to a higher-level police station, but they refused to assist unless bribe was given. Another police station also rejected his case and told him that they would only accept cases referred by the commune police station.

7.  While the applicant was returning home, he was informed by his wife that the creditor and his underlings were at his home. The applicant was scared and fled to his grandmother’s home, where he stayed for three months. As the applicant continued to receive threatening phone calls from the creditor and his underling, he decided to leave Vietnam. He entered China illegally on 23 February 2016 and eventually sneaked into Hong Kong from Shenzhen on 26 February 2016.

8.  While in Hong Kong, the applicant maintained contact with his wife, who told him that the creditor was still enquiring his whereabouts from time to time. The applicant was of the view that he could not seek protection from the police because of his unpleasant past experience. Meanwhile, he considered internal relocation not viable because he believed that he would still be found by the creditor and his underlings. He also claimed there was restriction for relocation in Vietnam.

9.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 2 December 2016 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) there was no evidence showing that the Vietnamese government was involved in the matter or that the creditor had means to locate the applicant anywhere within Vietnam [14.1]; (ii) the past behaviour of the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as he claimed [14.2]; (iii) state protection would be available to him [15]-[19]; (iv) internal relocation would be viable [20]-[25] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[37] or Torture risk [38]-[42].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 3 December 2018, the Board conducted a hearing.

13.  The Board found the past action of the creditor showed that he had no real intention to seriously harm or kill the applicant [44]. The Board also noted that the behaviour of the applicant was inconsistent with someone genuinely in fear [45]-[46] and there was unexplainable delay on his part in seeking protection [47].

14.  In any event, the claimed ill-treatment failed to attain the requisite level of severity and there was also no evidence of state involvement in the matter. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [4]-[23], [65]-[67], [70]-[88]. Furthermore, state protection and internal relocation would also be available according to the country of origin information [53]-[65], [69].

15.  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

16.  The applicant has filed Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant says he does not agree with the Board and he cannot go back to his country because it is dangerous. Other than that, he has raised no specific reasons to challenge the Board’s Decision.

DISCUSSION

18.  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).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he was not sure if the Board was wrong, but he thought that the Board had not analyzed some of the issues. He asked the Court to review the Board’s Decision.

20.  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.”

21.  For the reasons given in paragraphs 13 and 14, the Board found that the applicant’s case did not meet the requirements of any of the applicable risks. The applicant has raised no valid reasons to challenge the Board’s Decision.

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

DISPOSITION

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