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HCAL 675/2018
[2020] HKCFI 2205
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 675 of 2018
BETWEEN
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Nguyen Duc Dong |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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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:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 4 January 2017 and was arrested by police on 5 January 2017. 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 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 Thon Tong Long Village, Xa Thang Long Town, Huyen Kinh Mon District, Tinh Hai Duong Province, Vietnam. After leaving school, he worked as a goods vehicle driver, got married and raised a family of one son in his home village.
3. In 2016 he started his own transportation business by borrowing from the bank with his house as collateral, and also from a local money-lender with monthly interest payments until discharge of the loan.
4. With those loans the Applicant purchased a goods vehicle for his transportation business, and from the earned profits he was able to make his monthly loans repayments to the bank and the money-lender.
5. However, one day in late 2016 he lost his vehicle in a traffic accident, and started to experience difficulties making his loans repayments, and as a result his house was foreclosed by the bank in December 2016, while on 10 December 2016 the money-lender also sent men to beat him up for failing to repay his loan.
6. After the beating the Applicant hid in a friend’s place, but a week later he was sought out by the money-lender whose men beat him again with wooden sticks that he suffered cuts and bruises all over his body, and before they left, they warned him that if he still failed to repay his loan, next time they would kill him.
7. Fearful for his life, the Applicant therefore departed Vietnam on 3 January 2017 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 on 22 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
8. By a Notice of Decision dated 20 September 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”).
9. 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 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 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 4 October 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 19 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 13 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.
11. In its decision the Board found the Applicant’s claimed ill-treatments from his creditor over their monetary dispute did not fall within any of the applicable risks, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant as well as reasonable internal relocation within Vietnam for him to move safely to other area away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.
12. On 19 April 2018 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 his supporting affirmation of the same date in which he merely attached a copy of the decision but without putting forward any ground for his intended application, nor did he request any oral hearing for his application. 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.
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 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
14. In the Applicant’s case, 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 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.
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.
Dated the 2nd day of September 2020.
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(NG Hang-yin)
for Registrar, High Court |
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 his 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 2nd September 2020
Nguyen Duc Dong
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 2nd September 2020
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 8716/17/10/46/V1719
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2009/17
(formerly RBCZ 10500/17) (T8I65)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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