PHAM HUY TOI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

 HCAL 2810/2018

[2021] HKCFI 2348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2810 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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 dated 6 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 (“RHC”), I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.  The applicant is a citizen of Vietnam.  He came to Hong Kong illegally in March 2015 and was arrested.  He lodged non-refoulement claim with the Immigration Department after his arrest.

5.  He claimed that if refouled, he would be harmed or killed by three creditors, from whom he had borrowed altogether 1 billion Vietnamese currency for his bus transportation business.  His business failed and he was unable to pay the interest or the debts.  The creditors had come to his home with their people armed with weapons of hammers, knives and guns.  They threatened that if he was unable to pay back the loans, they would cut his limbs or even kill him.  He therefore decided to come to Hong Kong.  Details of his story are set out in paragraph 8 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered his application in relation to the following risks:

a.     risk of torture under Part VII C 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”).

7.  By Notice of Decision dated 4 January 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.  The Director found that the level of him being harmed or killed by the creditors if he returned to Vietnam was assessed to be low [14]; that state protection was available to him [22] and internal relocation was an option open to him [27].

The Board’s Decision

8.  The applicant appealed against the Director’s Decision.  He attended the hearing before the Board on 24 October 2018.  According to the Board’s Decision, he refused to give evidence and said that he had nothing to add to his statements.

9.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Decision for the reasons that he was unable to provide evidence as to the details of the loans, the Board found that he was not a credible witness and he had failed to prove the existence of the loans [31]; that his evidence was general and vague and the Board did not accept that he was threatened by the 3 creditors and he failed to prove there would be likelihood that he would be harmed or killed if he returned to Vietnam [38 & 39]; that state protection would be available to him [43] and that internal relocation was an option open to him [64].

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant filed Form 86 on 10 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.

11.  In his affirmation in support of his application, he said that he wanted to review the Board’s Decision because the Board’s Decision was unfair.  It did not understand his dangerous situations in Vietnam.

DISCUSSION

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

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

14.  His grounds in support of this application are his opinions only without any evidence to support them and they do not assist his application.

15.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

17.  I therefore refuse to grant leave for the applicant to apply for his intended 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