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Tran Van Cuong 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 2790
Judgement NumberHCAL691/2021
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL691/2021 TRAN VAN CUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 691/2021

[2021] HKCFI 2790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 691 of 2021

BETWEEN

Tran Van Cuong 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 28 January 2021 refused; and

2. leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1. The Applicant is a 39-year-old national of Vietnam who entered Hong Kong illegally in March 2020 and was arrested by police on 17 April 2020. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditors over his outstanding debts.

2. The Applicant was born and raised in Kien Thuy District, Hai Phong, Vietnam. After leaving school he engaged in farming in his home district, got married and raised a family with 2 children.

3. In 2017 he established a fish farm by borrowing loans from three local money-lenders with monthly interest payments, but after a plague in 2018 which wiped out his fish stocks, the Applicant lost his business and was unable to make any loans repayments, and after having been threatened and beaten by men sent by his creditors, the Applicant feared for his safety and therefore departed Vietnam in March 2020 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 June 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4. By a Notice of Decision dated 31 July 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 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”).

5. 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 creditors 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 creditors to seriously harm or kill him other than to put pressure on him to repay his loans, that in any event they were private monetary disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 98 million...

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