CHU VAN MANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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

Following:

1.   The Applicant’s Form 86 be amended to name the Director of Immigration only as a putative interested party as opposed to a putative respondent; and

2.   The application for leave to apply for judicial review be dismissed

Observations for the Applicant:

1.   By a Form 86 filed on 31 August 2021 (“Form 86”), the Applicant sought leave for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 August 2021; the Director of Immigration (“DI”) was also named as a putative respondent.  The DI made a first tier decision on the Applicant’s non‑refoulement claim on 16 March 2021.

2.   The Board’s decision sought to be reviewed can be seen from the following hyperlink[1].  In the circumstances, on my own motion, paragraph 1 of the above orders is made to properly name the DI’s status in the present proceedings.  

3.  The Applicant does not require an oral hearing for this leave application; I dispose of this application by consideration of documents only.

4.  The Applicant is a Vietnamese national.  His non-refoulement claim was based on an alleged risk of being harmed or killed by his creditor with triad background.  After an oral hearing, the Board came to the view that the Applicant did not come to Hong Kong to seek refuge because of the alleged threat.  It was further not convinced that the Applicant had suffered any physical or mental pain or suffering as alleged.  Finding the Applicant’s assertions dishonest and unreliable, the Board concluded that there was no factual basis on which it could accept the Applicant to be subject to any real or substantial risk of ill-treatment.   

5.  Moreover, the Board found that there was State protection in Vietnam and reasonable internal relocation alternative available to the Applicant.  The claim also did not fall within the meaning of torture or a Convention ground for persecution.  The Applicant’s appeal/petition against DI’s tier-1 decision was hereby dismissed.

6.  The only grounds of judicial review set out by the Applicant were that the Board did not allow the Applicant “an opportunity to clarify [his] case and situation in [his] country” and a repetition of the alleged risk from his creditor.  There is no elaboration or supporting evidence as to how the Board denied his chance to clarify his case.  According to the information available to this Court, there was an oral hearing for the Applicant to make representation to the Board and answer questions.  There were also serious and intense discussion of the various aspects of the Applicant’s case.  I am unable to detect any procedural unfairness upon an anxious scrutiny of the Board’s decision.  

7.  It has been reiterated time and again that the primary responsibility for the factual assessment of whether any risk of ill-treatment exists lies with the Board.  In the absence of any errors of law, procedural unfairness or irrationality, the Court would not reopen the findings below or make a determination on the case afresh.  The role of the Court in a judicial review is not to provide a further avenue of appeal (see Re Lakhwinder Singh [2018] HKCA 246).

8.  I have reviewed the Board’s decision vigorously, but do not find the proposed judicial review reasonably arguable.  The leave application is thus dismissed.

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