NGO QUANG THI v. DIRECTOR OF IMMIGRATION

HCAL 536/2018

[2020] HKCFI 1917

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 536 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 47-year-old national of Vietnam who last entered Hong Kong illegally on 29 June 2014, and on 19 August 2014 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 loan.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Nam Hai Hamlet, Doan Xa Commue, Kien Thuy District, Hai Phong Province, Vietnam.  After leaving school he assisted his father in working as a fisherman, and after having done that for 15 years, he decided to purchase his own fishing boat by borrowing a loan from the local money-lender repayable within 2 years with monthly interest payment at 3% on the principal loan.

3.  With the loan the Applicant bought a fishing boat and began taking his boat out to fish with his own crew.  For the first two months he was able to make his interest payment to his creditor, but one day in the third month during a storm his boat sank and he lost everything.  As a result he was unable to make any further interest payments to his creditor, who then demanded repayment of the entire loan from him with threats to kill him if he failed to do so.

4.  The Applicant therefore fled to Quang Ning Province, but when he later heard that the money-lender had sent men everywhere to look for him, he felt it was no longer safe to remain in Vietnam, and so on 25 June 2014 he departed 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 on 25 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 27 November 2017 the Director of Immigration (“the 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”).

6.  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 upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from him, that 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, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Vietnam with a large population of 95 million people spread across a vast territory of more than 310,000 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 Hanoi where it would be difficult if not impossible for his creditor to locate him.

7.  On 6 December 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 6 November 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found significant inconsistencies and contradictions in the Applicant’s evidence about his alleged loan from the money-lender for purchasing a fishing boat that it did not consider him to be a credible or reliable witness, that it did not accept that he did borrow a loan from the money-lender or that he was threatened by the money-lender over his failure to repay the loan that caused him to depart Vietnam that it concluded that his claim for non-refoulement protection failed on all applicable grounds. 

9.  Going back in time to 3 April 2018, even before the Board delivered its decision, the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, and, obviously, no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely repeated his claim that he would be killed by his creditor if returned to Vietnam.  Nor did he request any oral hearing for his application. 

10.  When the case eventually came before me and upon recognizing this anomalous situation, I instructed my clerk to write to the Applicant on 24 April 2020 to request him to submit his grounds for his intended application now that he must have received the Board’s decision, but in response he just submitted his hearing bundle for his appeal before the Board without putting forward any ground to challenge the Board’s decision.  As such 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 for his intended challenge.  

11.  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.

12.  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 45 – 57 of its decision with the benefit of hearing him in his oral evidence and 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.

13.  Furthermore, the fact is that it has been established by 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.     

14.  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.

15.  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