BUI VAN TUAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 661/2018

[2020] HKCFI 2324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 661 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Vietnam who last entered Hong Kong illegally on 4 February 2016 and was arrested by police on 3 March 2016.  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 Ngu Lao Commune, Thuy Nguyen District, Hai Phong City, Vietnam.  After leaving school he worked as an electrician in Hai Phong City, married his wife and raised a family of two children.

3.  In 2012 he started a hedgehog rearing business by borrowing a loan from a local money-lender repayable within one year with interest charged on the principal sum payable every month until discharge of the loan.

4.  Initially the Applicant was able to make his monthly interest payments to his creditor from his hedgehog business without problem, but in late 2012 his land where he reared his hedgehogs had been resumed by the government with little compensation, and as a result he was unable to carry on with his hedgehog business which had to be closed down.   

5.  Upon losing his business the Applicant was unable to repay his loan, and when he was threatened by his creditor for failing to repay his loan, he fled to Taiwan in 2013 where he found a job working in a factory, during which he was told by his wife of continued threats and harassments from his creditor that had driven her to flee to Hong Kong, and in mid-2015 when he returned to Vietnam, he was also threatened by his creditor and was on one occasion assaulted by his men, he therefore fled to China in December 2015, and from there he later sneaked into Hong Kong and surrendered to the Immigration Department, but on 22 January 2016 he was repatriated to Vietnam.

6.  Upon his return to Vietnam and when he heard that his creditor was still looking for him, the Applicant departed Vietnam again on 2 February 2016 for China, and from there he again sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 12 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 31 May 2017 the Director of Immigration (“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 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”).

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 upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from his creditor, that his problems with his creditor were private monetary disputes 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 show that reasonable internal relocation alternatives are available in Vietnam with a large population of 95 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 young man 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 creditor to locate him.

9.  On 8 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  However, even before his appeal was heard by the Board, let alone any decision had been made, the Applicant on 17 April 2018 filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he merely repeated his claim that he would be killed by his creditor if refouled to Vietnam but without putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

10.  Eventually the Board scheduled an oral hearing on 28 June 2019 for his appeal, during which the Applicant appeared in person and gave oral evidence and answered questions raised of his claim by the adjudicator for the Board.  On 27 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted the Applicant’s claim of threats from his creditor over his failure to repay his loan, but found that it was a private monetary dispute between them without any official involvement that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to move to other area away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds. 

12.  On 28 May 2020 the Court wrote to the Applicant to ask him to confirm that it is this decision of the Board that he intends to apply for judicial review, and if so he may submit additional information or representation for his appeal within 14 days, and that he may also request an oral hearing for his appeal if he so wished, otherwise his application would be dealt with on paper as he had originally indicated.

13.  No response has been received from the Applicant, and in the circumstances I proceeded to deal with his application on paper and in his absence, but as noted above, he has not put forward any proper ground for his intended challenge.  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.   

14.  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.

15.  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 his 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.     

16.  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.

17.  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.

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

Form CALL-1