NGUYEN VAN TUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 2318/2020

[2023] HKCFI 2458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2318 OF 2020

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 / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Vietnam who first entered Hong Kong illegally on 26 October 2017 and was arrested by police on 28 October 2017 for theft for which he was subsequently convicted and sentenced to prison for 4 months. Upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by a customer of his pawn shop over some monetary dispute.

2.  The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he married his wife and raised a family with a daughter by running a pawn shop in his home district.

3.  In June 2017 a customer by the name of Nam pawned his motor cycle to the Applicant’s pawn shop as security for a loan, but when Nam later defaulted with his interest payments and failed to redeem or repay his loan, the Applicant confiscated his motor cycle and sold it in settlement of the debts.

4.  Several months later in October 2017 Nam came to the pawn shop to redeem his motor cycle, but when he was told that it had already been sold due to his default of his loan repayment, Nam became furious and demanded for the return of his motor cycle or its compensation or else he would kill the Applicant.

5.  On the same afternoon Nam returned to the shop to repeat his demands, and when it was rejected by the Applicant, Nam punched him on the face and vandalized the pawn shop until restrained by the neighbours, and before he left, Nam swore to kill the Applicant if he still failed to compensate for his motor cycle.

6.  After the incident the Applicant made a report to the police who however treated the matter as a private dispute between the 2 of them and refused to take any action against Nam.

7.  On the same night Nam came to the Applicant’s home with several men armed with knives and shouted for the Applicant to come out, and when the Applicant refused to do so, Nam then left with his men, but later the Applicant heard that they had gone to his pawn shop and set fire to burn it down.

8.  As a result the Applicant became fearful for his life and fled to Mong Cai, and on 23 October 2017 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and after 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 28 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.  By a Notice of Decision dated 19 March 2018 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”).

10.  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 customer Nam and his men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatments from them, that there is no evidence of any real intention of them to seriously harm or kill the Applicant, 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 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 anyone to locate him.

11.  On 10 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it was dealt with by the Board, the Applicant withdrew his appeal and was repatriated to Vietnam on 14 November 2018.

12.  However, just one year later on 17 November 2019 the Applicant again entered Hong Kong illegally, and was arrested by police on 18 November 2019, and after he was referred to the Immigration Department for investigation, the Applicant again raised the same claim of fear of being harmed or killed by Nam and his men who had continued to threaten and assault him and his family after his repatriation to Vietnam in November 2018, and so he departed Vietnam again in November 2019 for China and sneaked back into Hong Kong for non-refoulement protection on the same basis.

13.  By a Notice of Decision dated 30 June 2020 the Director upon treating the Applicant’s claim as a subsequent claim but rejected it again on all the applicable grounds including torture risk, BOR 2 and BOR 3 risks and persecution risk after arriving at the same assessment and determination as in his previous claim that the level of risk of harm as low due to the low intensity and frequency of past ill-treatments from Nam and his men, and that it was a private monetary dispute between them without any official involvement that state/police protection and reasonable internal relocation would be available to the Applicant upon his return to Vietnam to negate such risk.

14.  On 9 July 2020 the Applicant again lodged an appeal to the Board against the Director’s decision, and for which he attended an oral hearing on 10 September 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 22 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

15.  In its decision the Board found inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted his claim of having formed any pawn shop business or of having any dispute with Nam over the pawning of Nam’s motor cycle or that he feared harm from Nam that caused him to again flee from his country to come to Hong Kong for protection, and that in any event even if such risk were real that it arose from some private monetary dispute between him and Nam 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.

16.  On 25 November 2020 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 in which he just stated that he does not agree with the decision as being grossly unfair and unjust about his case but without providing any details or particulars or elaboration as to how it is so, nor did he request any oral hearing for 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.

17.  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.

18.  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 98 – 136 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

19.  The fact is that it has also been correctly established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.  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.

21.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and 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