NGO QUOC PHUC v. TORTURE CLAIMS APPEAL BOARD

HCAL 926/2018

[2020] HKCFI 2340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 926 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 29-year-old national of Vietnam who entered Hong Kong illegally on 23 September 2015 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 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 Haiphong City, Vietnam.  After leaving school he worked as a restaurant waiter in various places, and in 2013 he decided to open his own restaurant by borrowing a loan from a local money lender, with the loan to be repaid within two years and with interest charged on the principal sum payable every 12 months.

3.  However, his restaurant was closed down in June 2015 due to poor business, and as a result he was unable to repay his loan, and after he had been threatened and beaten up on several occasions by men sent by his creditor over his failure to repay his loan, he departed Vietnam on 22 September 2015 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 17 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 20 April 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”).

5.  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 it was a private 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 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 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 to locate him.

6.  On 2 May 2017 the Applicant 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 1 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the Applicant’s claim in respect of the terms of the loan hard to believe and doubted his claim of being threatened by his creditor over his default with his loan repayment, but found in any event 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 within such a large country with a big population that he would be able to move safely 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.   

8.  On 24 May 2018 the Applicant filed his Form 86 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 creditor if returned to Vietnam without putting forward any proper grounds for his intended application, nor did he request any oral hearing for his application.  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.

9.  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. 

10.  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.     

11.  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.

12.  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