NGUYEN VAN THANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2169/2019

[2024] HKCFI 3497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2169 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 58-year-old national of Vietnam who entered Hong Kong illegally on 31 January 2015 and surrendered to the Immigration Department on 9 February 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thuy Nguyen, Haiphong, Vietnam. After leaving school he worked as a transportation worker, got married and raised a family with 2 children in his home district.

3.  In 2012 he started a lumbering business in partnership with a friend and with the help of a loan from a local money-lender to be repaid within 2 years and with monthly interest payments which he initially managed to make from his business income.

4.  However, in October 2013 his partner absconded with all the money of the business and disappeared, and as a result he lost his business, and when he was unable to repay his loan, his creditor sent men to threaten him, and on one occasion in November 2013 those men beat him severely that he suffered cuts and bruises all over his body, and before they left, they warned him that next time if he still failed to repay his loan that they would kill him.

5.  After the assault the Applicant became fearful for his life, and fled from his home district to Hanoi, but later when he heard that his creditor had discovered his whereabouts and had sent men to come after him, the Applicant then fled to Mong Cai, and in February 2014 he departed Vietnam for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 7 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 4 October 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”).

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 followers 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 of his creditor to seriously harm or kill him other than to press him to repay his debts, that in any event it was a private monetary dispute between him and his creditor only 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 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 areas of the country 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.

8.  On 12 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he was said to have failed to attend the scheduled oral hearing on 12 June 2019 before the Board without any explanation, nor did he respond to the Board’s subsequent request for explanation for his non-attendance or make any request for a another oral hearing that the Board proceeded to deal with his appeal in his absence and on paper.

9.  By a decision dated 26 July 2019 the Board dismissed the Applicant’s appeal upon finding material inconsistencies and discrepancies in his evidence that it rejected his claim of being in debts or that he feared of being harmed or killed by his creditor that caused him to leave the country to come to Hong Kong to seek protection, and that in any event even if his claim were true that it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam to negate such risk that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 30 July 2019 the Applicant filed his Form 86 to seek leave to apply for judicial review of the Board’s decision, but no ground for relief was given in his Form or in his supporting affirmation of the same date in which he just repeated his claim as before but without putting forth any ground for his intended challenge, nor was he able to do so at the hearing of 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 of the Board’s decision,

11.  I should however point out that while in the decision the Board as noted above recorded that the Applicant failed to attend the hearing for his appeal scheduled on 12 June 2019 without explanation, and that whereupon the Board proceeded to deal with his appeal in his absence and on paper only based on the materials and information available before it, as the Board so stated in [6] – [7] of the decision:

“聆訊

6. 本席審視所有文件和涉案爭議點後指示對上訴進行聆訊。聆訊定於2019年6月12日舉行。（上訴人在聆訊中缺席只由律師代表出席。本席查看記錄確信聆訊通知書已成功派遞給上訴人故指示上訴委員會秘書處向上訴人發出書面通知書令上訴人在通知書日期7天內以書面解釋缺席聆訊的理由及提交書面證據支持其所述的理由。在指定限期完結後上訴委員會沒有收到上訴人的回覆，本席便依賴面對的文件對上訴人的上訴進行裁決。

7. 在指定的限期內没有收到上訴人的書面觧釋缺席聆訊，本席便依賴面對的文件對上訴人的上訴進行裁決。）”

12.  However, when the Board proceeded to assess and determine the credibility of the Applicant’s claim, it stated that it had heard the following evidence given by the Applicant at the appeal hearing:

“對上訴人案情的審核

22. 本席在庭上用心聆聽上訴人的證供後對他的證供存疑。上訴人在庭上說他投資了 10億越南盾在木材生意但對該生意的詳情、 投資總成本及 Linh 投資金額完全不知情,他自己只負責保安工作。上訴人在庭上同意10億越南盾對他來說是非常龐大的金額而且他所投資的10億是借貸得來兼要付高利息。上訴人投資這龐大資金到木材生意上但對這生意的運作,可見利潤及 一切細則卻一無所,這完全是不合常理。

23. 上訴人在庭上說 Linh 被越南公安拘捕至木材生意無法繼續使他損失慘重。本席向他指出他在免遣返表格中說 Linh 侵吞了 10 億越南盾逃去無踪,上訴人卻無法解釋他證供不符之處。綜觀上訴人的所有證供本席不相信上訴人有向Phong借貸，本席不接納上訴人是一個誠實可靠的證人，也不接納他的證供。”

13.  This is clearly contradictory to the Board’s record of the Applicant’s failure to attend the scheduled hearing and that it proceeded to deal with his appeal on paper only, of which the Board was certainly entitled to do, but in which case it would be factually incorrect and contradictory to its subsequent statement that it had heard oral evidence from the Applicant at the hearing, and that during which the Applicant was unable to explain or clarify certain discrepancies in his evidence raised by the Board, and upon which the Board proceeded to reject the credibility of his claim of being in debts or of fear of harm from his creditor as alleged.

14.  This is therefore a factually contradictory statement made by the Board, as either the Applicant did not attend any hearing before the Board as recorded and hence the Board just dealt with his appeal on paper only, or that the Applicant did attend an oral hearing and gave oral evidence to the Board but that the Board mistakenly recorded that he did not do so. It certainly cannot be both, but which is correct is not for the court to speculate.

15.  Given such a material contradictory statement made by the Board, and as noted above that it was on such basis that it rejected the credibility of the Applicant’s claim of being in debts to a money-lender that the Board’s decision would certainly be liable to be challenged by the Applicant, but for the fact that the Board did proceed to find, as noted above and correctly in my view, that if the Applicant’s claim were true that it was a private monetary dispute between him and his creditor only without any official involvement that state and police protection would be available to the Applicant to negate any risk that might arise from such dispute: see [26] – [34] of the Board’s decision.

16.  In the circumstances, I do not find that the said contradictory statement made by the Board, glaring as it may be, would at the end assist or advance the Applicant’s case any further, and as noted above that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also agreed and 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.

17.  In the premises, and for these reasons I am not satisfied that there is any prospect of success in the intended application of the Applicant, I therefore refuse to grant leave and accordingly dismiss his 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