DO MANH HAU v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1781/2018

[2020] HKCFI 1362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1781 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 dated18 July 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 CACV8/2018, [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 did not attend the hearing scheduled on 31 December 2019. I shall proceed to consider his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is a Vietnames national. He came to Hong Kong on 3 April 2017 illegally and was arrested by police on 11 April 2017. He was referred to the Immigration Department for further investigation. He lodged his non-refoulement claim on 24 April 2017 by written representation.

5.  He claimed that if refouled, he would be harmed or even killed by his creditor Tran Van Cuong because he was unable to repay his debts.

6.  He had borrowed 1.2 billion Vietnamese currency from a creditor for his vehicle repair shop. His business went bad and he was unable to pay the interest or pay off the debt. He closed down his business. The creditor demanded repayment of the debt and sent triad members to his home three times. They vandalized his home and assaulted him with wooden stick and bare hands. The last incident was in March 2017. The creditor sent three men to his home and assaulted him with knives and wooden sticks. He escaped. He lived in his friend’s place in Kwang Ning Province. He stayed there for a few weeks. However, his friend told him that the creditor had discovered him and had sent some people to look for him. He moved to another friend’s place. His friend advised him to leave Vietnam. He took his advice and came to Hong Kong.

The Director’s Decision

7.  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”).

8.  By Notice of Decision dated 8 November 2017, the Director rejected his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks as he alleged if he returned to Vietnam was low [12]; that state protection was available to him [13] and internal relocation was an option open to him [18]. His claim under BOR2 risk was not established.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decision. Having considered the authority of ST v Betty Kwan [CACV115/2013], the Board decided to assess his appeal without a hearing.

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

11.  The Board considered the applicant’s evidence and found that taking at its highest, the applicant’s case was a private borrowing and there was no evidence that the government was involved in the transactions. It also agreed with the Director that state protection was available to the applicant and also that internal relocation was an option open to him. See §§43-50 of the Board’s Decision.

Application for leave to apply for judicial review

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

13.  In his affirmation in support of his application, he said that the Board’s Decision was not fair. He did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

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.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

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 leave to the applicant to apply for 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