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HCAL 2432/2018
[2020] HKCFI 1730
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2432 of 2018
BETWEEN
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Doan Huu Dong |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. Leave is granted to the applicant to amend Form 86 by deleting the Director from the respondent column to be added in the interested party column.
The applicant
2. The applicant is a Vietnamese national. He came to Hong Kong on 26 October 2014. He was arrested on 6 November 2014 and was referred to the Immigration Department on 7 November 2014. He lodged a non-refoulement claim on 13 November 2014.
3. He claimed that if refouled, he would be killed by Ah Nam, the creditor, due to his loan default.
4. In 2014, he borrowed about 300 million Vietnamese currency from Ah Nam for his hair saloon business. He business did not do well after six months and he was unable to pay interest to Ah Nam. Ah Nam took other people to his home for payment. He was unable to pay. He was assaulted by Ah Nam and his people. He escaped to another city. He then came to Hong Kong.
The Director’s Decision
5. The Director considered his application in relation to the following risks:
a.torture risk under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”);
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”).
6. By Notice of Decision dated 25 May 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.
The Board’s Decision
7. The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 20 July 2018.
8. By Decision dated 26 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s evidence. It came to its conclusion that it did not accept that the applicant had incurred debt in Vietnam and that he was harmed by creditors or debt collectors. It came to this conclusion having found the facts under paragraph 64 of the Board’s Decision as set out below.
a.It was implausible the there was no date of repayment of the loan.
b.It did not accept that the applicant would go back to the scene in just half an hour after he had been beaten up with wooden sticks by a gang.
c.It did not accept that Nam had bribed the police for not taking up his complaint.
d.That he was attacked by wooden sticks which he gave evidence at the hearing, he did not say it in his Non-Refoulement Form and in his interview with the immigration officer.
Application for leave to apply for judicial review
10. He filed Form 86 dated 1 November 2018 for leave to apply for judicial review of the Board’s Decision.
11. In his affirmation in support of his application, he repeated that if he returned to Vietnam, his creditor would do him harm.
DISCUSSION
12. The applicant appeared before me and he confirmed that he was free to advance his case before the immigration officer and the Adjudicator. His duty lawyer had explained the Director’s Decision to him. His friend had explained the Board’s Decision to him.
13. I put the Boarding’s findings above to him and asked him if he had any comments on them. He said that he had no comments.
14. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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. The Board had set out the reasons in its Decision why it found his evidence not credible. It was entitled to form its own views after assessment of the evidence before it. The applicant said that he had no comments on the Board’s findings.
16. The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.
CONCLUSION
17. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.
Dated the 28th day of July 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 28/7/2020
Doan Huu Dong
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28/7/2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7338/17/6/34/V1408
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 698/17(formerly RBCZ 3002115/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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