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HCAL 591/2018
[2020] HKCFI 1895
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 591 of 2018
BETWEEN
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Tran Van Thanh |
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 38-year-old national of Vietnam who entered Hong Kong illegally on 17 September 2015 and surrendered to the Immigration Department on 23 September 2015 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 Trung Ha Commune, Thuy Nguyen District, Haiphong, Vietnam. After leaving school he worked as a farmer, got married and raised a family of two children in his home district.
3. In March 2011 he borrowed a loan from a local money-lender to start his fish farm business, with the loan repayable within 3 years with payment of interest charged on the loan on monthly basis.
4. Initially the Applicant managed to make his monthly interest payments without problem, but in August 2012 there was an epidemic which killed all his fish produces and wholly ruined his business. As a result he was unable to make any loan repayment that his creditor sent his men to threaten him and his family by destroying the furniture in his home and punching and kicking him all over his body.
5. To avoid further threats from his creditor, the Applicant fled to Mong Cai to work as a casual worker and to send money to his wife for part payments of his loan, but when he heard from his wife in February 2013 that his creditor had lost patience with him and had sent men to his home to threaten to kill him, he departed for China in August 2013 but where he was soon arrested by police and was repatriated to Vietnam.
6. In September 2014 the Applicant departed Vietnam again for China, and from there he later in April/May 2015 sneaked into Hong Kong where he was subsequently arrested and was repatriated to Vietnam in July 2015.
7. As he was unable to find employment in Vietnam, he departed for China again on 17 September 2015, and from there he sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
8. By a Notice of Decision dated 18 August 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 found no substantial grounds for believing that his claimed risk of harm from his creditor or his men upon his return to Vietnam is real and foreseeable due to the low intensity and frequency of past ill-treatment from them, that his problem with his creditor was a private monetary dispute 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 94 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 28 August 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 16 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 11 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.
11. In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his alleged loan and the threatening and assaulting incidents that his claim was found to be incredible, and that in any event with state/police protection available as well as reasonable internal relocation for the Applicant to move safely to other parts of Vietnam without risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.
12. However, even before the Board handed down its decision, on 10 April 2018 the Applicant already 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 that he would be harmed or killed by his creditor for failing to repay his loan if refouled to Vietnam without putting forward any proper ground for his intended challenge, 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 Director or the Board or in their decisions 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 11th day of August 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 11th August 2020
Tran Van Thanh
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 11th August 2020
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 8275/17/8/313/V1631
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 13430/15
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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