LE VAN THANH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1080/2018

[2020] HKCFI 2414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1080 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 Applicants:

1.  The Applicants are a married couple and nationals of Vietnam who arrived in Hong Kong with their adult son on 2 November 2013 with permission to remain as visitors up to 9 November 2013 when they did not depart and instead overstayed, and on 11 November 2013 surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the local gangsters for refusing to pay protection money.  They were subsequently released on recognizance pending the determination of their claim.

2.  Both Applicants were born and raised in Haiphong City in Vietnam.  After marriage they raised a family of one son, and later moved to Quang Ninh Province where they ran a porcelain and chinaware business.

3.  Sometime in September 2013 some local gangsters came to their shop and demanded for protection money, and when they refused, they vandalized their shop and threatened that next time if they still refused to pay money, they would be killed.

4.  After the incident the Applicants reported the matter to the police but were unable to get any assistance, and as they feared for their safety, they moved back with their son to Haiphong City to hide in a relative’s place, but as they still felt not safe in Vietnam, they therefore on 2 November 2013 departed for Hong Kong where they subsequently overstayed and raised their non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form on 10 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 16 February 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from those local gangsters upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicants 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 Applicants as able-bodied adults with working experience to move with their son 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 those local gangsters to locate them.

7.  The Applicants then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which they attended an oral hearing on 13 April 2018 before the Board during which they gave evidence and answered questions put to them by the adjudicator for the Board.  On 14 May 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and contradictions in the Applicants’ evidence that it did not accept their claim as reliable, but found in any event that in the absence of any official involvement that state/police protection would be available upon their return to Vietnam as well as reasonable internal relocation for them to move safely to other area away from their home district without any risk of being pursued or located by those local gangsters that their claim for non-refoulement protection failed on all applicable grounds.

9.  On 12 June 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in their supporting affirmation of the same date they merely repeated their claim that their lives would be in danger if they returned to their home country but without putting forward any proper grounds for their intended challenge, nor did they request any oral hearing for their application.  As such 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 Applicants, I do not find any reasonably arguable basis for their intended challenge.

10.  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.

11.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

12.  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 Applicants’ claim.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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