NGUYEN DAT BAY v. TORTURE CLAIMS APPEAL BOARD

HCAL 3710/2019

[2022] HKCFI 2210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3710 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Vietnam who entered Hong Kong illegally on 2 November 2015 and surrendered to the Immigration Department on the following day when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Dong Le Village, Dong Tao Commune, Khoai Chau District, Hung Yen Province, Vietnam. After leaving school he got married, raised a family with 2 children, and worked in various jobs in his home village.

3.  In 2014 he started a trading business in electrical appliances by borrowing a loan from a local money-lender repayable within 2 years and with monthly interest payments.

4.  His business however did not fare well, and by 2015 he started to have difficulty making his monthly interest payments, and soon his creditor would send his men to threaten him, and after one occasion when those men threatened to cut him to pieces with their knives if he still failed to repay his loan soon, the Applicant became fearful for his life, and fled to Hai Duong City to take shelter in a friend’s place.

5.  When he later heard from his family that his creditor is still looking for him everywhere, the Applicant therefore fled to Mong Cai, and on 26 October 2015 he departed Vietnam 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 (“NCF”) on 28 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  While being released on recognizance pending the determination of his claim, the Applicant was subsequently charged with the offences of undertaking unauthorized employment and in possession of a forged identity card, for which he was convicted and sentenced to prison for 15 months.

7.  By a Notice of Decision dated 1 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his creditor or followers upon his return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to put pressure on him to repay his loan, that in any event 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 upon his return to Vietnam, 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 his creditor to locate him.

9.  On 13 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 24 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board doubted the Applicant’s evidence as to his claim of fear of being harmed or killed by his creditor to cause him to flee his country for Hong Kong to seek protection when he was subsequently convicted for undertaking unauthorized employment which undermined his credibility, but found in any event that it was a private 1 dispute between him and his creditor without any official involvement that state/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 part of the country such as Hanoi where his wife and children have since relocated without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 12 December 2019 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 just repeated his claim of fear of being harmed or killed by his creditor and followers if deported back to his home country without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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, while it seems questionable as to the Board’s assessment of the credibility of his claim by taking account of his conviction for undertaking unauthorized employment in Hong Kong in rejecting his claim of coming to Hong Kong to seek protection but without making any adverse findings as to the core of his claim of fear of harm from his creditor over his outstanding loan, nevertheless this would not in my view assist or advance the Applicant’s case given the fact that it has been correctly established by both the Director and the Board in their respective decision that such risk of harm in the Applicant’s claim if true 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.  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 that would assist the Applicant’s case for his intended challenge, nor any failure on their part to apply high standards of fairness in their consideration and assessment of his claim.

15.  Furthermore, the Applicant recently on 18 May 2022 filed an affirmation requesting to withdraw his application as his family has managed to pay off his debts to his creditor that it is now safe for him to return to his home country.

16.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss 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