HOANG NGOC CHUNG v. TORTURE CLAIMS APPEAL BOARD

HCAL 351/2019

[2022] HKCFI 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 351 OF 2019

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 33-year-old national of Vietnam who arrived in Hong Kong on I July 2012 as a visitor with permission to remain up to 8 July 2012, during which he registered a marriage with a local resident on 3 July 2012 and applied for a dependent visa to stay in Hong Kong, and with his stay extended pending the determination of his application, but when his application was withdrawn on 30 March 2015 upon his divorce with his wife, he did not depart and instead overstayed, and was arrested by police on 21 February 2016. After he 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 his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school he worked in various jobs, and in 2010 he opened a coffee shop in his home district by borrowing a loan from a local money lender repayable within 2 years and with interest payable per month.

3.  Initially the Applicant was able to make his monthly interest payments from the income of his coffee shop without problem, but one night in 2011 his coffee shop was burnt down due to electrical short circuit, and as a result he lost his business and defaulted with his loan repayments, and after being threatened and beaten by men sent by his creditor on several occasions, the Applicant then fled to Hanoi, and on advice from his Hong Kong girlfriend, he departed Vietnam on 1 July 2012 for Hong Kong.

4.  On 3 July 2012 he registered his marriage with his girlfriend in Hong Kong, and then applied for a dependent visa based on their marriage. As a result his stay in Hong Kong was extended pending the determination of his application, which was however withdrawn after their divorce in March 2015, but he did not depart and instead overstayed, and almost one year later in February 2016 he was arrested by police and was referred to the Immigration Department when he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 8 May 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”).

6.  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 and his creditor’s followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, 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 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.

7.  On 14 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 October 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 7 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm form his creditor over his outstanding debts that caused him to travel to Hong Kong to seek protection, that in any event it was a private monetary dispute without any official involvement that state /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 area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.  

9.  On 8 February 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 or in his supporting affirmation, 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.

10.  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.

11.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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.     

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