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HCAL 2850/2018
[2020] HKCFI 2709
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2850 of 2018
BETWEEN
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LE, Duc Minh |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge P.Li :
Leave to apply for Judicial Review be refused.
Observations for the Applicant :
1. The applicant entered Hong Kong from China illegally on 28 November 2015. He surrendered to the Immigration Department on 2 December 2015. He was released on recognisance on the same day. He filed his non-refoulement claim on 12 September 2016[1].
2. The basis of his claim was that he would be harmed or killed by Tran Quyet, the moneylender, if he returned to Vietnam.
3. The Director of Immigration (‘the Director’) dismissed his claim on 15 March 2017. His appeal to the TCAB was dismissed on 6 December 2018. He filed an application for leave for judicial review on 12 December 2018.
Background
4. The applicant was born on 3 March 1989. He was brought up in Trang Cat, Hai An, Hai Phong, Vietnam. He was single. He had no siblings. His parents had passed away. He studied up to grade 7 in a secondary school.
5. He was a farmer after leaving school. In 2012, he worked as an apprentice in repairing cell phones. Around 2014, he borrowed a billion Vietnam currency (“Dong”) from ACB Bank to start his cell phone trading business. A few months later, he was unable to repay the bank loan. He then borrowed 2 billion Dong from Quyet to repay the bank loan and continued with his business. He had to pay a monthly interest of 20 million Dong. At that time, he did not know Quyet was a triad boss and had connections with local government officials and the police. This information was from a friend.
6. In 2015, his business turned bad. He was unable to pay any interest to Quyet who harassed and assaulted him. There were 4 incidents of assault by several men armed with sticks. He had bruises and swelling all over his body. He took painkillers and applied ointment for treatment. He had once reported the assault to the police at Lach Tray Street Police Station. The police refused to investigate without giving reasons. He did not report to other police station.
7. After the last assault, he was in fear and left home to live in his friend’s house. It was about half an hour drive from his home. In November 2015, he decided to leave Vietnam. While in Hong Kong, his friend told him not to return to Vietnam as Quyet was still looking for him.
The decision of the Director of Immigration
8. As the applicant had a full hearing in TCAB. I would concentrate on that decision so far as this leave application is concerned. I however would briefly mention the decision of the Director for the sake of completeness.
9. The Director concluded that the risk of harm from Quyet was low for the following reasons:
(a) The assaults in the past were of low intensity. The applicant did not need professional medical treatment. He recovered in a few days. This did not satisfy the criterion of minimum level of severity.
(b) While the applicant stayed away from home at his friend’s house, nothing happened to him. This show Quyet’s influence was quite localised.
(c) After considering the COI, the Director found that there was reasonable state protection. There was no evidence that the police inaction was systematic. In fact, the applicant had not report to other police stations.
(d) Internal relocation was permissible under the law in Vietnam. It was not unduly harsh for the applicant to relocate to Ho Chi Minh City or Da Nang. There should not be any language or ethnic problems.
10. There was no genuine and substantial risk of ill-treatment or arbitrary deprivation of life if he returned to Vietnam. The claim under BOR 2 and 3 were rejected.
11. The ill-treatment to the applicant by Quyet arose from a loan dispute. He could leave Vietnam on a valid passport. His situation was not within the ambit of ‘persecution’ as defined under the Refugee Convention. The claim of persecution risk failed.
12. There was no severe pain or suffering amounting to ‘torture’ as defined under s.37U (1) of the Immigration Ordinance. There was no evidence that the conduct of Quyet was instigated by any public officials or under their acquiescence. The applicant was not targeted by the Vietnam government. The torture claim failed.
The decision of TCAB
13. An oral hearing was held on 12 September 2018. The applicant gave evidence. The content of the non-refoulement claim form (‘NCF’) and the record of interview by the Director were considered.
14. The Adjudicator pointed out various aspects of the applicant’s evidence which showed that he was unreliable. The following is some examples:
(a) The applicant alleged in the NCF that he borrowed money from Quyet at a lower interest rate than the loan from ACB Bank. The adjudicator thought this was impossible.
(b) The applicant mentioned a different amount of loan in his NCF and the notice of appeal. He could not explain the discrepancy. [2]
(c) The applicant gave contradictory explanations as to why he carried his passport to Hong Kong albeit that he entered Hong Kong and China illegally. He initially said it was posted to him from Vietnam after he arrived at Hong Kong. In fact, he handed in the passport to the Immigration when he surrendered himself. He then explained that his passport was left behind in his luggage while sneaking to Hong Kong. It was eventually handed over to him by someone through the arrangement of a middleman in Hong Kong. The latter arranged for his illegal entry to Hong Kong.
(d) The applicant was a poor farmer. It was unbelievable that he could borrow such a large loan from the bank and Quyet.
(e) The applicant gave contradictory version as to the ownership and sale of his house and land.
(f) The applicant was only a cell phone repairer. The adjudicator found it unreasonable that he could start a cell phone trading business in such a short time. The applicant was not familiar with the procedures of setting up a business in Vietnam. His knowledge on registration of business and VAT was contrary to the content of the COI.
(g) During the hearing, the applicant told the adjudicator that he gave a full statement to the police. He was told to wait pending investigation. However, in his NCF, he said the police refused to do anything as Quyet had strong connections with the police.
15. Given the above, the adjudicator rejected the applicant’s version of facts in support of his non-refoulement claim.
16. Having considered various COI Reports, the adjudicator concluded that there was reasonable state protection in Vietnam had the applicant resorted to it. The adjudicator found that the applicant had never reported to the Vietnam authorities.
17. In relation to torture risk under the Immigration Ordinance, the adjudicator found that there was no ill-treatment by Quyet. The applicant had not reported the incidents to the police. The dispute was a private one and there was no involvement of any public official. The was reasonable state protection in Vietnam. Internal relocation was viable. This claim failed.
18. The applicant’s evidence of ill-treatment failed to satisfy the ‘minimum level of severity’. In fact, the adjudicator rejected that the applicant was ill-treated. The various COI reports indicated that there would be reasonable state protection. The applicant failed to show there would be genuine and substantial risk of more severe ill-treatment if returned to Vietnam. The BOR 3 ground failed.
19. Likewise, the applicant failed to establish any risk of violation of BOR 2—right to life. The dispute was purely private and no official involvement.
20. The applicant and his family were not members of any group relevant to persecution risk. He was not a refugee defined under Article 1 (A) (2) of the Refugee Convention. The applicant failed to prove that there was well founded fear of ill-treatment. There was no evidence that Vietnam government could not provide protection. It was not unreasonable for the applicant to relocate in Vietnam. The persecution ground failed.
Judicial Review
21. The applicant did not request for a hearing. In his affirmation in support of the leave application, he claimed that he could not repay the loan as interest had accumulated to a large sum. Quyet and his underlings would even kill him. There was no specific complaint about the decision of the adjudicator.
22. The adjudicator had set out the legal principles in detail. He had considered the evidence thoroughly. His findings were well substantiated by the evidence.
23. Having considered the decision of the adjudicator, I agree with his reasoning set out above. The story of the applicant was not credible. There is no error of law or procedure.
24. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated the 23rd day of October 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant / the Applicant’s solicitors
on 23 October 2020
LE Duc Minh
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23 October 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6666/17/3/321/V1121
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 468/17 (formerly RBCZ 13280/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] On all grounds including “torture risk” under Part VIIC of the Immigration Ordinance.; “BOR 2”—right to life under article 2 of HKBORO; “BOR3”—CIDTP under article 3 of HKBORO and “persecution risk” under article 33 of the Convention relating to the Status of Refugee.
[2] One billion from ACB Bank and two billion from Quyet according to NCF. Only 100 million and 200 million during his oral evidence and in the notice of appeal.
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