TRAN VAN TUAN v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 452/2018

[2020] HKCFI 1634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 452 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 57-year-old national of Vietnam who entered Hong Kong illegally on 20 April 2014 and was arrested by police on the same day.  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 the Vietnamese authorities over a land dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Vietnam.  After leaving school he joined the national army for about a year before returning to his home village where he got married, but when he was unable to find work, he came with his wife to Hong Kong in 1989 to claim refugee status but in 1992 they were repatriated to Vietnam on voluntary basis.

3.  In 1993 his wife rented a piece of land from the government upon which they built a house and a fish pond as well as a farm growing produces for sell to make their living.

4.  However, in May 2013 the government resumed their land for development and offered them a cash compensation which the Applicant found insufficient that he refused to accept the offer or to move from the land.

5.  One day on 20 June 2013 a demolition crew from the government arrived with a bull-dozer to demolish the Applicant’s home, during which the Applicant became furious and wounded the bulldozer driver when he struck him with a stick.  On seeing it and fearful of being arrested by the police, the Applicant fled from the village to hide in various places of his friends, but when he heard that the police were looking for him everywhere, he decided that it was no longer safe to remain in Vietnam, and so on 18 April 2014 he departed for China, and from there he sneaked into Hong Kong, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 27 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 11 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”).

7.  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 the Vietnamese government upon his return to Vietnam as low due to the absence of past ill-treatment from them, that there is no evidence that he had been pursued by the authorities over the incident all these years, that in any event given what he had done in that incident that the police were entitled to look for him for investigation and hence he would be fleeing from his country as a fugitive from lawful prosecution and therefore not entitled to refugee protection, and that reliable and objective Country of Origin Information show that police in Vietnam are generally effective in upholding the law and that any penalty which the Applicant may face for hitting the bulldozer driver would not be severe and certainly would not be life threatening, while the law also provides for compensation, housing and jobs for individuals displaced by land development that any land dispute that the Applicant might have can be resolved peacefully and legally that it would not be unduly harsh for him as an able-bodied adult with working experience to return to his home district to reunite with his family.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 26 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 28 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim that the Vietnamese police may be looking for him for investigation as to the incident of him hitting the bulldozer driver, but found no evidence to suggest any improper or discriminatory police procedure or any unfair or improper prosecution of the law by the Vietnamese government against him over the bulldozer incident or the land dispute, that on the basis of his potential liability as provided by the Vietnam Penal Code that the Applicant will not face any life danger if he is convicted for the offence that he had committed over his land dispute and in particularly that the death penalty will not be involved, and that being a suspect fleeing from prosecution or punishment for such an offence does not put him within the category of refugee, and in the absence of any evidence to suggest that he will face any risk of persecution and that his claim does not involve any Convention ground as to his race, religion, nationality or membership of a particular social group or political opinion, it concluded that his claim failed on all applicable grounds.      

10.  On 20 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, and in his supporting affidavit of the same date he merely repeated his claim of fear of harm if refouled to Vietnam without putting forward any grounds for his intended challenge of those decisions, nor did he request for any oral hearing for his application.  As such and in the absence of any reasonably arguable ground with proper particulars or elaboration 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 basis for his intended challenge.

11.  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.     

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 Applicant’s claim.

13.  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