HKCFI 1227
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1091 of 2017
||Vo Van Hung
||Torture Claims Appeal Board
||Director of Immigration
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
||consideration of the documents only; or
||consideration of the documents and oral submissions by counsel for the Applicant in open court;
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review granted.
Observations for the Applicant:
1. The applicant is a 39-year-old national of Vietnam who was brought to Hong Kong as a refugee in 1991 when he was 12 years old, and while being detained together with other Vietnamese refugees in Whitehead Detention Centre, he was involved in an incidentin 1994 in which a fellow Vietnamese refugee was killed and for which he was convictedof murder and subsequently sentenced to 23 years of imprisonment for the fact that he was then only aged 15 when the crime was committed.
2. Upon completing his sentence the applicant was transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he was served with a deportation order by the Immigration Department on 29 June 2016. He then lodged a non-refoulement claim on 23 November 2016 on the basis that if he returned to Vietnam he would be at risk of harmof persecution and/or prosecution by the Vietnamese government or killed by the family of the murder victim in revenge. He has since been kept in CIC pending the determination of his claim.
3. The applicant was born in Southern Vietnam in 1979 where his father was during the Vietnam War in the 1970s a soldier in the army of the then South Vietnam fighting against the communist regime of North Vietnam. After the latter won the war and united the country as the Socialist Republic of Vietnam, his parents fled and hid from the resultant purge against South Vietnamese, and after his birth his parents placed him in the care of a relative whom he used to call his adoptive father and then disappeared without being heard of again.
4. One day in 1991 when the applicant was 12 years old, his adoptive father asked one of his friends to bring him onto a boat when they travelled with other Vietnamese to Hong Kong where they were put in the Whitehead Detention Centre and where the applicant was subsequently involved in the incident for which he was convicted for murder and sentenced to life imprisonment which was subsequently quashed by the Court of Appeal for his age factor and replaced by one of 29 years and of which the applicant had served 23 years.
5. During his prison term the applicant was also involved in two incidents for which he was convicted in 2001 for attempt to cause grievous bodily harm and sentenced to imprisonment for two years, and in 2002 for assault occasioning actual bodily harm and criminal damage and sentenced to four months imprisonment.
6. While in prison the applicant also attended classes for Chinese, English and accounting, sat for and passed two subjects in the Hong Kong Certificate of Education Examination, learnt skills in book-binding, printing, hair styling and sewing, and became a Christian, and was offered jobs and supports by fellow Vietnamese residents in Hong Kong upon his release from prison.
7. However, based on his criminal convictions, a deportation order for life was issuedagainst him on 2 September 2016 by the Immigration Department upon his completion of the prison terms, and he has since been detained in CIC pending the determination of his non-refoulement claim, for which he later completed his Non-refoulement Claim Form with legal representation from the Duty Lawyer Service in which he claimed to be at the following risks if refouled to Vietnam:
(1) that he would be at risk of persecution as his biological father was a soldier who fought for South Vietnam against the Communist Regime of North Vietnam;
(2) that he would be at risk of being killed by the family of the murder victim in revenge;
(3) that he would be at risk of being prosecuted for having left Vietnam without official permission; and
(4) that he would be at risk of double jeopardy for being punished for the murder he committed in Hong Kong.
8. By a Notice of Decision dated 1 March 2017 the Director of the Immigration Department (“the 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“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”).
9. On 13 March 2017 the applicant filed his appeal/petition to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended two oral hearings on 20 and 21 June 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 29 June 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.
The Board’s decision
10. In its decision the Board dealt with and rejected each of those four risks relied on by the applicant which can be summarized as follows:
(1) Risk of harm because his father fought against the communist:
The Board found that the applicant did not know very much about his biological father, that everything he knew about him had been told to him by his adoptive father, that he did not adduce any evidence to show that the Vietnamese government...