TRAN VAN THANH v. IMMIGRATION DEPARTMENT AND ANOTHER

HCAL 453/2018

[2020] HKCFI 76

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 453 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 49-year-old national of Vietnam who entered Hong Kong illegally on 1 January 2014 and was arrested by police on 29 July 2014 for possession of a forged identity card for which he was subsequently convicted and sentenced to 15 months in prison.  Upon his discharge from prison on 29 May 2015, he was referred to the Immigration Department when he 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 Thủy Nguyên Huyện, Hải Phòng, Vietnam. He received no formal education but had worked as a fisherman, got married with two children and later raised a poultry farm together with his wife.

3.  In 2000, in order to expand his poultry business, the Applicant borrowed a loan from a local money-lender repayable with monthly interest payments.

4.  However, in 2002 there was an outbreak of infectious disease in his home region that killed all his poultry that he had to close down his business.  As a result he was having difficulty making his loan repayment in time, and had had to resort to borrowing from his friends to make part payments to the money-lender.

5.  From 2002 to 2013 the Applicant had made only two small repayments to his creditor, and so one day in mid-2013 his creditor came with several men to the Applicant’s home to demand for repayment with threats to kill him and his family if he failed to do so. As a result the Applicant handed over the title deeds of his house to his creditor who then warned him that unless the loan was paid soon, he would forfeit his house.

6.  After his creditor left with his men, the Applicant did not report their threats to the police, and as they continued to threaten and harass him and his family, in August 2013 his wife left their home and Vietnam, and in late 2013 the Applicant also left Vietnam for Hong Kong but was refused entry and was returned to Vietnam.

7.  About one week later, the Applicant again departed Vietnam but this time for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest for possessing a forged identity card and his release from prison on 29 May 2015 after serving 15 months in prison, he raised a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 6 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 30 July 2018 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 (“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”).

9.  In his decision the Director took into account 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 is unlikely the creditor had any real intention to harm or kill the Applicant when he had had ample opportunities to do so between 2002 and 2013, that in any event his creditor was already given the title deed of his house and 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 (“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 work experience to move to other part of Vietnam 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.

10.  On 10 August 2018 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 24 May 2019 before the Board with his lawyer from DLS during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made by his lawyer on his behalf.  On 22 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found that even on the Applicant’s own case that his problem with his creditor was a private loan dispute between two private citizens without any state or official involvement that state protection as well as reasonable internal relocation options would be available for the Applicant to move safely to other places of Vietnam 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 that his claim for non‑refoulement protection failed on all applicable grounds.

12.  On 20 March 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim of fear of being killed by his creditor and that he cannot return to Vietnam.  As such and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I am unable to find any reasonably arguable basis to challenge the findings of the Director or the Board.

13.  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 an 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 being 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 537.

14.  The fact is that it has been established by both 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.

15.  In the premises and having proceeded to consider 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.

16.  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