DINH VIET KHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1759/2019

[2024] HKCFI 2387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1759 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 17 June 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 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.

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 57, is a Vietnamese.  He arrived Hong Kong illegally on 13 December 2015.  The applicant surrendered to the Immigration Department on 15 December 2015 and made a non-refoulement claim on the same day.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”), who had triad background, because he failed to repay his loan.

5.  According to the applicant, he had been running a garment business since 1995.  In August 2007, he borrowed money from the creditor to expand his business.  The applicant was able to repay monthly instalments to the creditor initially.  By October 2014, as the business was not as good as it used to be, he started to struggle with repayment and had to raise money from relatives and friends to repay the creditor.  In November 2015, soon after the applicant defaulted paying instalment, the creditor and three of his underlings came to vandalise his home.  One of them even pointed a knife at the applicant, threatening to kill him if he failed to repay.  Eventually, they left after giving the applicant half more month to repay his loan.   

6.  At the end of November 2015, as the applicant could not afford paying the creditor, he relocated with his wife to his friend’s home, while his children moved to stay at his mother-in-law’s place.  During the applicant’s stay at his friend’s house, he learnt from his brother that the creditor had gone to his home looking for him.  Following the advice from some neighbours, the applicant and his wife left Vietnam on 9 December 2015 and eventually entered Hong Kong illegally from Mainland China on 12 December 2015.

7.  The applicant maintained contact with his children while in Hong Kong.  His children advised him not to return, probably because they heard from the applicant’s brother that the creditor was still after the applicant.  The applicant had never reported the case to the police because he had no money to bribe them and he also felt that they took side with the creditor.  The applicant considered internal relocation not viable as well because he believed that the creditor could utilise his triad network to find him.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 30 August 2017 (“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 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 [12]-[13]; (ii) state protection would be available to him [14]-[19]; (iii) internal relocation would be viable [20]-[25] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[30], Persecution risk [31]-[35] or Torture risk [36]-[39].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 8 April 2019, the Board conducted a hearing.

12.  During the hearing, the applicant told the Board that he had taken out loans from a differently named creditor in 2012 and 2013 [22], for which he managed to pay instalments from 2012 to July 2014 [24].  Between end of 2014 and October 2015, there were around ten debt collection incidents, amongst which violence was inflicted 2-3 times.  On one occasion, the applicant was knocked down by two motorcycles and suffered head injuries [25].  Despite so, the applicant admitted that the creditor merely wanted to enforce the repayment of loan and that he would unlikely be hurt if this was done [26]-[27].

13.  The Board noted discrepancies in the applicant’s evidence as to (i) when the loan was taken out; (ii) name of the creditor; (iii) the period for which he managed to pay instalments; (iv) the number of debt collection incidents and (v) whether violence was used during debt collection incidents [39]-[43].

14.  The Board rejected the applicant’s account regarding the loan as well as the claimed threats, violence and injuries suffered [46].  In any event, there was no evidence of involvement by the Vietnamese government in the matter and it was also the applicant’s own evidence that the creditor only intended to enforce the loan repayment rather than to seriously harm/kill him.  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 [48]-[58], [67]-[75].  Furthermore, state protection and internal relocation would be available according to the country of origin information [59]-[66].

15.  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

16.  The applicant has filed Form 86 dated 25 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant did not raise any specific ground 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.

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.  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.

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

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

DISPOSITION

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