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Pham Van Toan v Torture Claims Appeal Board [Decision On Leave Application]

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date16 September 2021
Neutral Citation[2021] HKCFI 2796
Year2021
Judgement NumberHCAL1998/2020
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL1998/2020 PHAM VAN TOAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1998/2020

[2021] HKCFI 2796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1998 of 2020

BETWEEN

Pham Van Toan 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 39-year-old national of Vietnam who entered Hong Kong illegally in about mid-October 2016 and was arrested by police on 16 May 2017 for the offence of drug trafficking for which he was subsequently convicted and sentenced to prison for 46 months, plus a further term of 15 months for illegally entering and remaining in Hong Kong, during which he raised a non-refoulement claim with the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts.

2. The Applicant was born and raised in Huyen Thanh Ha District, Tinh Hai Duong Province, Vietnam. After leaving school he worked in the construction field, and went through two marriages.

3. In 2010 he borrowed a bank loan for a building construction project in Hanoi, but due to some issues with the building materials used in the project which caused delays to construction and cash flow problems in 2011 which had affected his loan repayments to the bank, and so he borrowed another loan from a local money-lender to meet his immediate cash flow problems which was to be repaid within one month including interests, but when he was unable to come up with sufficient cash to repay the loan, the money-lender started to send men to threaten and beat him, and so he fled from his home district for various other places for the next 5 years to avoid his creditor.

4. However, one day in June or July 2016 in Mong Cai he was attacked by men sent by his creditor who threatened to kill him next time if he still failed to repay his loan soon, the Applicant felt it was no longer safe to remain in Vietnam, and so he departed for China, and from there he sneaked into Hong Kong in October 2016, and after he was arrested by police and sent to prison for drug trafficking, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 April 2020 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 May 2020 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...

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