DINH HUU TIEN v. TORTURE CLAIMS APPEAL BOARD

HCAL 147/2019

[2021] HKCFI 3549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 147 of 2019

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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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Vietnam who entered Hong Kong illegally on 8 August 2015 and surrendered to the Immigration Department on the same day when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by gangsters hired by his customers for failing to refund their money paid to his employer’s failed business.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Thon Duong Truong, Lap Le, Thuy Nguyen, Hai Phong, Vietnam.  After leaving school he worked as a housekeeper in a hotel in Cat Ba where he befriended his former employer and joined her dating service business by referring his friends and relatives to her dating service for commissions.

3.  However, one day in 2015 his employer had absconded with all the money paid by her customers and disappeared, and when her customers came to the Applicant for refund of their money, he was unable to do so or to disclose the whereabouts of his former employer that some of the customers then sent hired gangsters to beat him up that he fled from his home to take shelter in a friend’s place in Lap Le, and from there he departed Vietnam on 5 August 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 14 February 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”).

5.  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 customers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private monetary dispute between his former employer and her customers 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 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 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 those customers to locate him.

6.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 10 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found inconsistencies and implausibilities in the Applicant’s evidence as to how he allegedly became involved in his employer’s business and her subsequent disappearance with her customers’ monies that he was subsequently threatened and beaten by them that caused him to leave his home country for Hong Kong, and that in any event even if his account is true that it was a private monetary dispute between his employer and her customers 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 areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds doubted.    

8.  On 16 January 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, and in his supporting affirmation of the same date he merely repeated his claim of fear of being killed by those customers of his former employer over the failed business if refouled to Vietnam but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.  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.

10.  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 8 – 36 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.  

11.  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 if true 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.  

12.  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.

13.  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