NGUYEN VAN DUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 150/2019

[2022] HKCFI 1098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 150 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Vietnam who entered Hong Kong illegally on 8 August 2016 and surrendered to the Immigration Department on 8 February 2017 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his parents’ creditor over their outstanding debts and/or by the police for allegedly killing of one of the men sent by his parents’ creditor to attack his family. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Haiphong City, Quang Ninh Province, Vietnam. After leaving school he assisted his parents in their farming in their home village.

3.  One day in 2011 some men came to their home to demand his parents to repay their debts, and proceeded to beat them with wooden sticks and iron bars in front of the Applicant and his siblings. After those men had left, the Applicant was told by his parents that they owed money to a local loan shark and that those men were sent to force them to repay their loan but that they were unable to do so.

4.  On the same day his parents reported the assault to the local police but was told that they would not take any action as it was a regarded as a private monetary dispute between them which the police would not intervene.

5.  For the next several months the loan shark would keep sending men to threaten and assault the Applicant’s parents and family including the Applicant in no less than 9 more occasions, but that none of which did the police intervene or take any action despite being reported of those assaults every time thereafter by the Applicant or his parents.

6.  On the 10^th occasion in June 2011 during their attack of his parents and family, the Applicant snatched a chopper and injured one of the assailants before running out of the house to get on a taxi which drove him to a forest to hide from those men.

7.  After hiding in the forest for several days, the Applicant ran into a logger who allowed him to use his mobile phone to contact his parents, and on the phone the Applicant was told by his mother that the loan shark had been looking for him everywhere and had even put up a reward for his capture, and hence he was advised to keep hiding in the forest.

8.  Several months later when he was unable to contact his parents, the Applicant called his neighbor and was told that his family had moved away to avoid the loan shark, but as the man whom he wounded during the last attack had subsequently died from his injury, the police were now looking for him as a suspect to the murder, and had put up a wanted list with reward for his capture everywhere in the village.

9.  For the next 5 years the Applicant kept hiding in the forest by doing whatever jobs he could find from amongst the forest dwellers, and eventually in October 2015 he arrived in Mong Cai City at the border of China, and from there he swam across the river into China where he survived by begging in the streets and sleeping in the park, and on 8 August 2016 he sneaked into Hong Kong by hiding underneath a truck, and after running into a Vietnamese woman who gave him advice to seek asylum protection from the Hong Kong Government, he then surrendered to the Immigration Department on 8 February 2017 and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

10.  By a Notice of Decision dated 24 November 2017 the Director of Immigration (“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”).

11.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of his account of being attacked by the men sent by his parents’ creditor and his escape into the forest where he survived for 5 years before swimming from Vietnam into China and then into Hong Kong underneath a truck all by himself without any money or help from anyone until he somehow by chance ran into a fellow countryman in the street that he finally sought non-refoulement protection as fantastical and incredible, that the credibility of his claim was further undermined by his failure to raise it upon his arrival in Hong Kong until some 6 months later, that in the absence of any reliable evidence other than his bare assertions of being told by his fellow inmates while being detained at the Immigration Department that he was wanted by the Vietnamese authorities as a murderer as equally unbelievable and incredible, while those unverified police wanted lists against him which he was unable to identify their source or how he was able to come across them were equally unreliable, that even if true that he is indeed being wanted by the police for some criminal offence that under the Vietnamese legal and judicial system that the Applicant would be regarded as a fugitive of the law not entitled to non-refoulement protection, that in any event his problem with the loan shark was a private monetary dispute between his parents and the loan shark without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam 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 96 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 the loan shark to locate him.

12.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 September 2018 before the Board during which he gave further oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence as to the alleged background of the loan incurred by his parents, the numerous assaults of him and his family by those gangsters sent by the loan shark, his escape and survival in the forest and his eventual escape to China and Hong Kong as well as his assertions as to how he came to know of being pursued by the Vietnamese police over the death of one of his assailants and how he obtained those unverified wanted lists issued by the Vietnamese authorities against him that the Board considered all of them as unreliable and incredible, which had further been undermined by his failure to raise his claim upon his arrival in Hong Kong until some 6 months later, that in any event reliable and relevant COI show that if indeed the Applicant was wanted by the Vietnamese police for prosecution over some criminal offence that he would be considered as a fugitive of the law not entitled to non-refoulement protection, that despite concerns over police corruption and incompetency, Vietnam is a country with law and order with a proper legal and judicial system that the Applicant would be entitled to due process and to defend the charges with legal representation that his such fear is not justified or well-founded, and that in the absence of any official involvement in the private monetary dispute between his parents and the loan shark that state/police protection would be available to the Applicant upon his return to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.              

14.  On 16 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) That the Board’s rejection of the Applicant’s claim of being wanted by the Vietnamese police and/or authority notwithstanding his production of documentary evidence of the police’s Wanted Person Notice and Criminal Fugitive List issued against him is unreasonable and irrational;

(2) That the Board’s reliance of COI which found the Vietnamese police corrupt but also efficient in assessing his claim is contradictory, unreasonable and irrational; and

(3) That the Board wrongly underestimated the risk that the Applicant would face of being harmed or killed by the loan shark upon his return to Vietnam given the fact that he was never able to get any help or protection form the local police.  

15.  For the Applicant’s complaint under Ground (1) of the Board’s rejection of his claim of being wanted by the Vietnamese police despite having produced documentary evidence such as the police wanted lists issued against him as unreasonable and irrational, the Adjudicator did give a full and proper analysis and reasoning in §§96 – 109 of the decision with the benefit of having heard his oral evidence and answers to questions raised of the claim during his appeal hearing as well as actual examination of those documents available before the Board in the hearing bundle, and similar to the full and careful analysis given by the Director in his decision, I do not find any error of law or irrationality or procedural unfairness in the Applicant’s process before the Board or in its decision, and on the basis of the facts and evidence relied on by the Applicant and analyzed by the Adjudicator, I agree that the Board was perfectly entitled to make those findings as it did and to reject the credibility of his claim of fear of being harmed by the Vietnamese authorities. As such I do not find any prospect of success in this complaint of the Applicant for his intended challenge.

16.  As for his complaint under Ground (2) that it was contradictory for the Board to find in the COI that the Vietnamese police as both corrupt and efficient, as evidenced in §§71 – 85 of the decision, the Adjudicator did properly find concerns about police corruption in Vietnam but that on the basis of recent reforms and efforts made by the government to fight corruptions and to improve competency and efficiency not just in the police but also in the legal and judicial system that the Board did correctly arrive at a proper and balanced assessment that the Applicant would receive due process of the law if indeed he is to be arrested and prosecuted by the authorities upon his return to Vietnam. In the premises I do not find any contradiction in such assessment of the Board, nor do I find this ground reasonably arguable.

17.  For his complaint under Ground (3) of the Board underestimating the risk that he would face from the loan shark upon his return to Vietnam due to the lack of help or protection from the local police in the past, the fact is that his claim had been rejected by the Board essentially on its adverse finding against his credibility including his assertions of his parents and family being assaulted on some ten occasions but were all ignored by the police which were simply not supported by any reliable evidence or the relevant COI other than his bare uncorroborated assertions that I do not find this ground reasonably arguable either.          

18.  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.

19.  In the Applicant’s case, as already noted above the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

20.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true from his parents’ creditor is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

21.  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.

22.  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