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

HCAL 2041/2019

[2024] HKCFI 2581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2041 OF 2019

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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 27 June 2019 of the Torture Claims Appeal Board/

2.  The applicant asked for a hearing.  However, he was absent at the hearing on 11 September.  I shall deal with 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 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 65, is a Vietnamese.  He last entered Hong Kong illegally on 8 October 2015 and he surrendered to the Immigration Department on 9 October 2015.  The applicant made a non-refoulement claim on 23 October 2015.  The claim was made on the basis that, if refouled, he would be harmed or even killed by (i)  some gangsters because he failed to pay them protection money and (ii)  the Vietnamese government because he was a deserted soldier.

5.  According to the applicant, he was recruited by the Vietnamese army in 1977.  He escaped from the military in November 1978, but was arrested a month later.  Thereafter, the applicant was detained for 11 years until 1989, during which he had been seriously assaulted.  The applicant claimed that the military kept him under surveillance even after his release.

6.  The applicant first entered Hong Kong as a visitor on 28 September 2000, after which he overstayed and was deported to Vietnam on 10 May 2001.  Upon the applicant’s return, he continued to be closely monitored by the Vietnamese authorities where there were restrictions imposed against him on his movement and to establish business.  Despite so, the applicant managed to start up a furniture shop under the name of his wife in early 2013.  Yet, in around March 2013, a group of gangsters started demanding protection money from him and harassing his customers.  The applicant suspected that the gangsters were sent by the Vietnamese government.  Although the matter was reported to the police, no action was taken by them.

7.  Due to the threats from the gangsters, the applicant left for Russia on 17 March 2013.  He overstayed and was deported to Vietnam on 28 November 2014.  Upon the applicant’s return, the gangsters came again demanding protection money in December 2014.  In May 2015, they even beat up the applicant and vandalised his shop because of his failure to pay protection money.  

8.  Upon the advice from his friend, the applicant decided to flee to Hong Kong to seek protection.  After his failed attempt to enter Hong Kong illegally in May 2015, the applicant managed to sneak into Hong Kong from Shenzhen on 8 October 2015.

9.  The applicant was of the view that he could not seek assistance from the police because he was a deserted soldier and was hated by the government.  He also considered internal relocation not viable because he believed that the gangsters would be able to locate his whereabouts anywhere within Vietnam due to their extensive network and power.

10.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 21 April 2017 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i)  the punitive actions taken by the Vietnamese government against the applicant for being a deserted solider had ended almost three decades ago and there was no indication that he would be subjected to further ill-treatment from the government [13]; (ii)  the past action taken by the gangsters showed that they had no real intention to seriously harm or kill the applicant [14], [17]; (iii)  it was the applicant’s mere speculation that the gangsters were connected with the Vietnamese authorities and had extensive network [15]-[16]; (iv)  state protection would be available [18]-[24]; (v)  internal relocation would be viable [25]-[28] and (vi)  the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34], Persecution risk [35]-[39] or Torture risk [40]-[42].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 27 April 2018, the Board conducted a hearing.

14.  The Board considered that the applicant was not a witness of truth and that he had fabricated his claims [49].  His conduct was inconsistent with his claim that he fled Vietnam for the purpose of seeking protection [50]-[51].  The claim about movement restrictions and the imposing of unreasonable reporting conditions by the Vietnamese authorities were also without basis [52]-[59].

15.  Meanwhile, the Board did not accept that the applicant was ever detained or punished for having deserted the Vietnamese army because of the inconsistent evidence he gave about his detention period [60]-[61].  The Board also rejected that there were work restrictions placed on the applicant or that the Vietnamese government had engaged triads to harass him [62].

16.  The Board found that the applicant was not of any adverse interest to the Vietnamese authorities or any triads, so that he would not be at risk of being harmed as claimed [63].  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [11]-[23], [65]-[68].

17.  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

18.  The applicant has filed Form 86 dated 18 July 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In his affirmation in support of his application, the applicant says his government in Vietnam will cause difficulties and obstacles to him if he returns to Vietnam and he needs help.

DISCUSSION

20.  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).

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

22.  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.”

23.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

24.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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