DANG VAN TUAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 516/2018

[2020] HKCFI 1485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 516 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 26-year-old national of Vietnam who arrived in Hong Kong on 28 November 2013 with permission to remain as a visitor up to 5 December 2013 when he did not depart and instead overstayed, and on 11 December 2013 he surrendered to the Immigration Department and 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 loans.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Hai Phong City, Vietnam.  After leaving school he worked in a garment factory, became addicted to gambling, and would from time to time borrow from a local loan shark to feed his gambling habit.

3.  In late 2013 he started to have difficulties repaying his gambling loans, and when he failed to heed the demands from his creditor to make repayments, one day in November 2013 he was ambushed near his home by men sent by his creditor and was attacked with iron rods that he ended with bruises and bleeding all over his body.  After his assailants left, he was taken by his neighbours to the local hospital for medical treatments.

4.  Upon returning home, he was advised by his parents to leave home to take shelter in his aunt’s place, but when his creditor continued to send men to his home looking for him and threatening his parents that they would kill him when they find him, he decided that it was no longer safe for him to remain in Vietnam, and so he paid an agent to make arrangements for him to depart Vietnam, which he did on 28 November 2013 when he travelled to Hong Kong where he overstayed, and upon his surrender to the Immigration Department, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 12 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

5.  Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police on 30 December 2014 for theft, and was subsequently convicted and sentenced to prison for 3 months.

6.  By a Notice of Decision dated 20 July 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”).

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 creditor and his men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on the part of his creditor to seriously harm or kill him other than to press him for repayment of his loans, that in the absence of 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 young man 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.

8.  By a Notice of Further Decision dated 18 July 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”).

9.  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 1 August 2016, and for which he attended an oral hearing on 30 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence as to his claim of borrowings from the loan shark and the subsequent threats from him and his men that it doubted his claimed fear of harm from them that caused him to depart Vietnam, and that in any event with state/police protection available upon his return to Vietnam and with reasonable internal relocation for him 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.   

11.  On 29 March 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, nor did he request for any oral hearing, and in his supporting affirmation of the same date he merely repeated his claim that he cannot return to Vietnam as his life would be in danger.  As such and in the absence of any error of law or procedural unfairness in the Board’s 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 10 – 19 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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.   

14.  Furthermore, the fact 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.

15.  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.

16.  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