BUI QUANG HUY v. TORTURE CLAIMS APPEAL BOARD

HCAL 672/2018

[2020] HKCFI 2325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 672 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 37-year-old national of Vietnam who entered Hong Kong illegally on 5 December 2014 and surrendered to the Immigration Department on 8 December 2014 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditors for failing to repay his loans.   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 in the construction business, and in 2002 formed his own construction company in his home district.

3.  In 2013 his business suffered serious losses, and so he borrowed loans from 3 different local loan sharks to cover his losses, with weekly interest payable on the loans to the loan sharks until their repayment.

4.  However, by August 2013 the Applicant was unable to meet his weekly interest payments to his creditors who started to send their men to his home to make threats against him, and on several occasions even beat him with iron bars that he ended up in hospital for medical treatments to his injuries.  

5.  Fearing for his life, the Applicant therefore departed Vietnam on 27 November 2014 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 16 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 26 July 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 his creditors upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problems with his creditors were private monetary disputes 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 (“COI”) 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 creditors to locate him.

8.  On 2 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which the Board did not find it necessary to schedule any oral hearing and dealt with the appeal on paper and in the absence of the Applicant.  On 11 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board did not take any issue with the credibility of the Applicant’s claim and accepted that he had been threatened and assaulted by his creditors over his loans, but found no evidence of any official involvement in their private monetary dispute that according to reliable COI that state or police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other areas away from his home district in large cities without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.   

10.  In fact prior to the Board’s decision, the Applicant one year earlier on 18 April 2018 already filed his Form 86 for leave to apply for judicial review of the Board’s decision, and for obvious reason he did not provide any ground for seeking relief in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he would be at risk of being killed by his creditors without putting forward any ground for his intended application.

11.  Upon receiving a copy of the Board’s decision on 12 May 2020, the court therefore caused a letter to be sent to the Applicant inviting him to submit any additional representation or grounds in support of his intended challenge of the Board’s decision now that it was available, but no response has been received from him, 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.

12.  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.

13.  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 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.     

14.  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.

15.  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