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HCAL 1085/2018
[2021] HKCFI 1020
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1085 of 2018
BETWEEN
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Tran Van Tuan |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 52-year-old national of Vietnam who had repeatedly entered Hong Kong illegally, and in his last attempt on 5 December 2012 when he was arrested by police on the same day, and 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 creditor for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim.
2. The Applicant was born and raised in Thuy Nguyen District, Haiphong City, Vietnam. After leaving school he farmed in his home village, got married and raised a family of 2 children.
3. In 2006 he borrowed a loan from a local money-lender to rent a piece of land for his farming business, with the loan to be repaid within 3 years and with a 20% interest charged on the loan payable annually.
4. Later in March 2006 the Applicant made his first illegal entry into Hong Kong from China to look for employment, but was soon arrested by police and was repatriated to Vietnam in July 2006 when he returned to farming in his home village.
5. However, in late 2006 a heavy storm washed away all his farming produce and as a result he lost his business, and when he was unable to make his interest payment in 2007, his creditor started to send his men to threaten and assault him, and so for the next several years the Applicant made 4 more attempts to sneak into Hong Kong, and on each of those occasions he was subsequently arrested by police for various offences including going equipped for stealing and smuggling, and for which he was convicted and sentenced to prison ranging between 18 and 30 months before being repatriated to Vietnam.
6. Upon his return to Vietnam on the last occasion in July 2012, he was told by his family that his creditor was still looking for him, and so the Applicant again on 3 December 2012 sneaked into Hong Kong, and on this occasion after his arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
7. By a Notice of Decision dated 9 November 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).
8. 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 his followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his creditor was a private monetary dispute 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 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditors to locate him.
9. By a Notice of Further Decision dated 28 October 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).
10. By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 19 November 2015, and for which he attended an oral hearing on 23 January 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 21 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
11. In its decision the Board found the credibility of the Applicant’s claim seriously undermined by his repeated failure to seek non-refoulement protection during his previous 4 trips to Hong Kong, and found in any event that in the absence of any evidence of any state or official involvement in the threats of his creditor that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located buy his creditor that his claim for non-refoulement protection failed on all applicable grounds.
12. On 13 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the decisions of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he would risk being killed by his creditor in Vietnam and that he disagreed with the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.
13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
14. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.
16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.
Dated the 20th day of April 2021.
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(LEE Chun-wa Allen)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 20th April 2021
Tran Van Tuan
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20th April 2021
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 2601/15/11/113/V98
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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