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Hoang Khac Viet v Torture Claims Appeal Board [Decision On Leave Application]

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date16 September 2021
Neutral Citation[2021] HKCFI 2793
Year2021
Judgement NumberHCAL909/2021
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL909/2021 HOANG KHAC VIET v. TORTURE CLAIMS APPEAL BOARD

HCAL 909/2021

[2021] HKCFI 2793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 909 of 2021

BETWEEN

Hoang Khac Viet Applicant
and
Torture Claims Appeal Board Putative Respondent
and
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:

consideration of the documents only; or
consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1. the application for extension of time for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 13 March 2018 refused; and

2. leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1. The Applicant is a 34-year-old national of Vietnam who entered Hong Kong illegally on 6 November 2015 and surrendered to the Immigration Department on 10 November 2015 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2. The Applicant was born and raised in An Lao District, Hai Phong City, Vietnam. After leaving school he married his wife and moved to reside in her home district in Cam Pha Town, Quang Ninh Province where he worked as a baker and subsequently ran his own baker shop.

3. In 2015 he borrowed a loan from a local money-lender for expanding his bakery business, with interest on his loan payable per month.

4. However, his bakery business did not fare well, and after about 6 months he started to have difficulty making his monthly interest payments, and as a result his creditor and followers came to his place to threaten him, and after being beaten by them on several occasions and his shop was also vandalized, the Applicant became fearful for his life, and so on 27 October 2015 he departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5. By a Notice of Decision dated 29 March 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm him other than to put pressure on him to repay his loan, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to...

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