TRAN BINH LUAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 725/2018

[2020] HKCFI 2278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 725 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 and his wife are nationals of Vietnam who entered Hong Kong illegally on separate occasions in 2014, and after they were separately arrested by police and were referred to the Immigration Department for investigation, they raised their non-refoulement claim jointly together on the same basis that if they returned to Vietnam they would be harmed or killed by their creditors for failing to repay their joint loans.  Their claims were accordingly jointly assessed by the Immigration Department.

2.  The Applicant was born and raised in Hai Phong City, Quang Ninh Province, Vietnam.  After leaving school he worked as a mechanic, but later when he lost his job and was unable to find other employment, he left Vietnam in April 2010 for China, and from there he sneaked into Hong Kong to look for employment, but was soon arrested by police and was repatriated to Vietnam in July 2010.

3.  Upon returning to his home district, the Applicant was able to find a job working as a hair stylist when he met and married his wife who also worked in the same trade.

4.  In December 2012 the Applicant and his wife borrowed three loans from three different pawn shop owners to start their clothing business in Hai Phong, with their loans repayable within two years and with interest payable every month until full payment of the loans.

5.  However, one day in May 2013 a fire occurred inside their shop which destroyed their business, and when they were unable to make any payments regarding their loans, they were threatened by their creditors that they would be killed if they failed to repay their loans.

6.  The Applicant did not report the threats to the police or seek their assistance, but as he was fearful for his life, he fled to Mong Cai to take shelter in a friend’s place, and then in February 2014 he departed Vietnam again 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.

7.  By then his wife had also sneaked into Hong Kong, and upon her arrest by the police, she also raised her non-refoulement claim and was referred to the Immigration Department when she together with the Applicant jointly completed a Non-refoulement Claim Form on 6 April 2017 and attended screening interview together before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 25 April 2017 the Director of Immigration (“the Director”) rejected the claim of the Applicant and his wife on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and his wife and assessed the level of risk of harm from their creditors upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that their problems with their creditors were private monetary disputes without any official involvement that state or police protection would be available to them 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 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 and his wife as able-bodied adults with working experience to move to other part of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for their creditors to locate them.

10.  On 8 May 2017 the Applicant and his wife jointly lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 20 February 2018 before the Board during which they gave evidence and answered questions put to them by the adjudicator for the Board.  On 2 March 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found such significant differences, inconsistencies and discrepancies in the evidence between the Applicant and his wife in respect of the central aspects of their claims in particularly regarding their clothing business and their loans that it did not accept that they had borrowed any loan from any pawn shop owners for the purpose of opening any clothing business, and rejected their claim of being threatened over such loans or that they would face any harm from anyone upon their return to Vietnam that their claim for non-refoulement protection failed on all applicable grounds. 

12.  On 25 April 2018 the Applicant by himself alone filed a Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision, 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 be killed by his creditors 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 46 – 61 of its decision with the benefit of hearing him and his wife in their oral evidence and their answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.  Furthermore, the fact is that it has been established by the Director in his 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.

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