LUU VAN HOA v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 498/2018

[2020] HKCFI 1481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 498 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 35-year-old national of Vietnam who entered Hong Kong illegally on 22 August 2015 and surrendered to the Immigration Department on 25 August 2015 when 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 An Thang Village, An Lao County, Hai Phong, Vietnam.  After leaving school he worked in his business erecting tombs in his home village, got married and raised a family of two children.

3.  In 2004 he borrowed a loan for his business from a local loan shark in his home village with no deadline for repayment but with interests on the principle sum payable every month until full payment of the loan.

4.  In 2008 his creditor started to demand full payment of the loan, but when the Applicant replied that he could only make payment by monthly instalments, his creditor was displeased and sent his followers to make threats against the Applicant and his wife over the loan.

5.  One day in late 2008 several followers of the loan shark came to the Applicant’s home again to demand for full payment of the loan, and when the Applicant was unable to do so, they proceeded to punch and kick him all over his body, and before they left, they warned that next time there would be worse consequences.

6.  After the incident the Applicant reported the matter to the police, but was told that it was a personal dispute that he should resolve privately with his creditor.

7.  One day in early 2009 his creditor again sent his followers to demand repayment from the Applicant, and when he was unable to do so, one of them took out a knife and slashed the forehead of the Applicant before they left.  As a result the Applicant was taken by his family to the local hospital for medical treatment to his injury.

8.  Upon his discharge from the hospital, and as he was fearful of any further violence from his creditor, the Applicant left his home to flee to Quang Ninh where he stayed and worked for almost a year without any incidents, and in 2011 he departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 7 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

9.  By a Notice of Decision dated 30 June 2016 the Director of Immigration (“the 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”).

10.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no reasonable likelihood that the claimed risk of harm from his creditor or followers upon his return to Vietnam is real or foreseeable due to the low intensity and frequency of past ill-treatment from them, that it was a personal monetary dispute between them 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 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 creditor or his men to locate him.

11.  By a Notice of Further Decision dated 16 March 2017 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”).

12.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 8 July 2016, but for which he failed to attend an oral hearing scheduled on 18 December 2017 before the Board, and when he also failed to respond to a subsequent letter from the Board for his explanation as to his failure to attend his oral  hearing, the Board proceeded to deal with his appeal in his absence and on papers.  On 30 August 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found even on the Applicant’s own case of no evidence of any real intention of his creditor to seriously harm or kill him other than to press him for repayment of his loan, that it was in any event a private monetary dispute between them without any official involvement that state/police protection would be available as well as reasonable internal relocation within Vietnam for him to move safely to other area away from his home district in large cities such as Ho Chi Minh City where he can re-establish his life and work without any fear or risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.    

14.  On 27 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, nor did he request any oral hearing for his application, and in his supporting affirmation of the same date he merely repeated his claim that his life would be at risk of harm from his creditor if refouled and that he be allowed to remain in Hong Kong until his problem at home has been resolved.  As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Director or the Board.

15.  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.

16.  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.     

17.  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.

18.  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