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HCAL 627/2022
[2024] HKCFI 393
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 627 OF 2022
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BETWEEN
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Vu Duc Tien |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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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 Bruno Chan:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 25-year-old national of Vietnam who entered Hong Kong illegally on 5 May 2019 and was arrested by police on 11 May 2019. After he was referred to the Immigration Department for investigation, 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 Uong Bi City, Quang Ninh Province, Vietnam. After leaving school he never worked and wholly relied on his parents for their support.
3. In January 2019 he borrowed a loan from a local money-lender for gambling, with the loan to be repaid by the end of 2020 and with monthly interest payments until full repayment of the loan.
4. However, soon the Applicant lost all the money on gambling, and when he was unable to make any interest payments, his creditor in April 2019 sent his men to threaten him, and on one occasion after being attacked by those men, the Applicant became fearful for his life and fled to hide in his uncle’s place.
5. With his uncle’s assistance, the Applicant on 1 May 2019 departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 21 August 2019 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 him being harmed or killed by 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 them to seriously harm or kill him other than to press him to repay the 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, 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 97 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 adult 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 27 August 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing on 30 June 2020 before the Board without any explanation, and that the Board proceeded to deal with his appeal in his absence and on paper. On 2 June 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor but found no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his loan, and that in any event it was a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.
10. On 18 July 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in his Form or his affirmation apart from just a regurgitation of his claim as before and a bare assertion that the decision is wrong in its assessment of reasonable internal relocation being available to him but without providing any necessary or relevant details or particulars or elaboration as to how it is so. 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.
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 fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in his claim if real 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.
13. 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.
14. Moreover, the Applicant recently on 3 January 2024 in writing requested to withdraw his application as it is now safe for him to return to his home country.
15. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to Vietnam, I accordingly dismiss his leave application.
Dated the 6th day of February 2024
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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 on 6 February 2024
Vu Duc Tien
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 6 February 2024
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 16225/19/8/87/V3337
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 534/19 (Formerly RBCZ 10373/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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