NGUYEN MANH QUYEN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2472/2018

[2022] HKCFI 3131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2472 OF 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 national of Vietnam. He entered Hong Kong illegally on 30 March 2015 and was arrested by the police for illegal remaining on 5 April 2015. On 11 April 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor Tran Van Hung (“Hung”).

5.  According to the applicant, he borrowed a loan from Hung to fund his seafood business in January 2010. Initially, he could afford repaying the interests. However, since May or June 2011, his business suffered a loss due to the deteriorating economy. The applicant started to default the payment in September 2011. Since then, Hung had been threatening and harassing the applicant for the repayment. On four occasions in August and September 2011, the applicant was assaulted by Hung and Hung’s followers. He sustained injuries in all four incidents. Out of fear, the applicant fled to Hanoi. Feared that Hung would eventually locate him, the applicant escaped to Hong Kong for protection. Details of his claim are set out at paragraph 8 of the Notice of Decision dated 4 November 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

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 way of the Director’s Decision, the Director dismissed the applicant’s claim for the reason that he would not face any real or substantial risk of harm from Hung. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated no real or foreseeable risk of harm [14]; (ii) the applicant had stayed in other villages without encountering Hung or Hung’s followers [15]; (iii) the applicant’s fear that he would be placed in jail was based on speculation [16]-[17]; (iv) state protection would be available to him [18]-[21]; (v) internal relocation was a viable alternative [22]-[24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 29 August 2018, the Board conducted an oral hearing for his appeal, during which he was legally represented and assisted by an interpreter [4].

9.  The Board considered the applicant’s evidence and the parties’ submissions [21]-[59]. It made the following findings. Firstly, the applicant’s evidence on the loan was inconsistent. In particular, he provided different accounts on the details, such as the name of the creditors and the year he took out the loan [60]. The applicant failed to explain such inconsistencies [61]. The contradictory nature of the applicant’s account of events undermined his credibility [62]. Secondly, the Board also cast doubt as to the applicant’s capacity to borrow the said sum [63]-[66]. Meanwhile, the applicant was not harmed prior to his departure and neither was his family harmed by Hung [68]. In any event, state protection and internal relocation were both viable alternatives for the applicant [69]-[75]. Further, the Board also rejected the applicant’s claimed fear of being imprisoned if refouled and thus his claim on BOR4 risk[1] did not arise [76]-[81].

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.  The applicant has filed Form 86 dated 6 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said if he returns to Vietnam, he would be killed by his creditor as he is unable to repay the loan and interest.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

15.  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.”

16.  There is no valid reason to challenge the Board’s Decision.

17.  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.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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