HOANG DINH CUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 2976/2019

[2024] HKCFI 84

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2976 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 refused.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Vietnam who had previously repeatedly entered Hong Kong illegally and was invariably repatriated back to Vietnam upon his arrests, but in November 2012 he again sneaked into Hong Kong, and was arrested by police on 23 November 2012 for which he was convicted and sentenced to prison for 18 months. Upon his discharge from prison and was referred to the Immigration Department for deportation, he on this occasion raised a non-refoulement claim on the basis that if he returned to Vietnam he would be arrested and sent to drugs rehabilitation center for forced treatments due to his past drug abuses during which he would be ill-treated and tortured and/or that he would be harmed or killed by his friend’s creditor over their monetary dispute. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he worked as a fisherman in his home district to make his living.

3.  In 2005 he started to abuse illegal drugs, and for which he was subsequently arrested by police and sent to some drugs rehabilitation center where he was required to undergo various drugs treatments and rehabilitation services, during which he was also forced to carry out hard labour and was beaten by the officials with wooden sticks.

4.  In May 2006 the Applicant was unable to tolerate the ill-treatments and made his escape from the center to return home, and when the officials later arrived to arrest him, his parents managed to bribe them so as to release him.

5.  Thereafter the Applicant was afraid of being arrested again and so in September 2006 he departed Vietnam for China and then sneaked into Hong Kong, but was arrested by police on the same day and was subsequently repatriated back to Vietnam in July 2008.

6.  However, as he was still fearful of being arrested by the authorities again, and so in March 2009 he again departed Vietnam for China, and from there he again sneaked into Hong Kong, and upon being arrested by police on the same day, he was repatriated back to Vietnam in January 2010.

7.  Shortly after returning to his home district, the Applicant was arrested by police again for drugs abuses, and was required to undergo drugs treatments and rehabilitation again in August 2010, during which he was ill-treated and beaten by officials as before.

8.  In June 2012 the Applicant was released and returned to his home district, and shortly thereafter one day while he was drinking beers with a friend Tran in a bar near his home, several men appeared to demand Tran to repay his debts, and when Tran was unable to do so, those men then beat him with wooden sticks, but the Applicant intervened to help his friend by fighting back those men with a knife and injured one of them that they managed to make their escape from the scene without any serious injuries.

9.  However, several days later the Applicant was informed by Tran that the man whom the Applicant injured in the fight had subsequently died that Tran’s creditor swore to kill the Applicant in revenge, and so the Applicant became fearful for his life and went into hiding, and in November 2012 he departed Vietnam for China, and from there he again sneaked into Hong Kong, and upon his subsequent arrest by the police and after serving his imprisonment, he then raised his non-refoulement claim for which he completed a Non-refoulement Claim Form (“NCF”) on 29 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

10.  By a Notice of Decision dated 29 August 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”).

11.  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 friend’s creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 95 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 friend’s creditor to locate him, while there is no evidence that he would be at risk of being arrested by the authorities or forced to undergo drugs rehabilitation treatments again given the fact that he had not been abusing drugs since his last treatments in 2012.

12.  On 29 September 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 12 August 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

13.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from the police or his creditor that caused him to leave his country to come to Hong Kong to seek for protection, that there is no reason for him to have any fear of the police or of being sent back to drug-rehabilitation center given his admission of no further drugs abuse since June 2012 and that he no longer has such concern, nor is there any evidence of any real intention of his friend’s creditor to seriously harm or kill him in what was just a monetary dispute between his friend and his creditor which has nothing to do with the Applicant and without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam if needed 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.

14.  On 10 October 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge, nor did he 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.

15.  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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 57 – 60 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial 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 findings of the Board.

17.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm from his friend’s creditor 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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.

19.  For the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and 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