BUI DUC CUONG v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2234/2018

[2021] HKCFI 3422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2234 of 2018

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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 the Applicant in open court;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant sneaked into Hong Kong from China on 15/12/2016. He was arrested by the police on the same day.  He raised a non-refoulement claim on 11/1/2017.

Background [1]

2.  The applicant was born in Hai Phong, Vietnam on 5/2/1995.  He is single. His parents and 2 siblings were in Vietnam.  He had received 6 years of formal education. He had worked in a garment factory for 3 years.

3.  In February 2015, he borrowed from the creditor (“DO”) 200 million VND to pay for his mother’s medical expenses.  The monthly interest rate was 3%. There was no deadline for repaying the principle sum. He used his family house as the security. He knew “DO” was a triad. At that time, his monthly income was 6,000,000 VND. It was just enough to pay for the monthly interest.

4.  One day in July 2016, “Do” suddenly demanded immediate repayment of the debt.  He was unable to repay. “Do” asked him to sell drugs.  He refused and “Do” left. 

5.  On another day in July, while he was driving his motorcycle, 3 to 4 men attacked him from behind. They were armed with wooden rods and a knife. He fell from the motorcycle and was attacked for about 10 minutes. They threatened to kill him if he did not repay. He was injured at his head. He was treated by a friend at that friend’s home. He did not consult any doctor. He stayed at this friend’s home and recovered in a month.

6.  He learned from his family that “DO” was still looking for him. In December 2016, he decided to go to Hong Kong for his safety. He went from Mong Cai in Vietnam to Dong Xing in China. He then took a bus to Shenzhen. He later sneaked into Hong Kong.

7.  The applicant did not report to the police as “Do” might harass his family. The police were corrupt. He could not afford a bribe. He did not accept that internal relocation would be viable as “DO” would be able to locate him.  He had to register with the local authorities if he changed his place of residence. The authorities would be able to trace his whereabouts.

The Decision of the Director

8.  The Director of Immigration (“Director”) dismissed his claims in the decision on 13/12/2017 which covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk ^[5]

9.  The Director found that the risk of harm from “Do” was low.  The reasons were as follows:[6]

i.        The risk of harm faced by the applicant did not meet the minimum level of severity [14(2) of the Director’s Decision];

ii.      It was a private dispute. There was no involvement of public officials. The applicant had overstated “Do’s” connection with the police.  In fact, he was safe when he stayed at his friend’s home which was 20 km from his home in Hai Phong. The Director was not satisfied that “Do” would be able to locate the applicant even if he relocates to another part of Vietnam [15—16];

iii.    The Director pointed out that there were corruption and abuse of power of the police and public officials. They had violated the law with impunity. However, the newly elected president was determined to improve the judicial system and protection of human rights. There was improvement in petition and complaint channels against corruption and inefficient government administration. Three hotlines were created to receive complaints. The Central Committee for Internal Affairs was tasked to make policy recommendation against corruption. The new Anti-Corruption law required senior officials to disclose their income and assets. There were reports that public officials were punished for corruption. The Director found that there was reasonable State protection. [19] and

iv.    Vietnam was a large country with 96 million people. He could apply for temporary registration of residence. Internal relocation to Ho Chi Minh City and Quảng Ninh would be viable given his experience. [25].

The Decision of the Board

10.  The TCAB dismissed the appeal on 24/8/2018 without an oral hearing. The adjudicator pointed out that there was sufficient evidence to assess the claims. There was no need to call for an oral hearing. 

11.  The TCAB gave the following reasons in support of its conclusion that the risk of harm was low:[7]

i.        The applicant could sneak into Dong Xing in China before travelling to Shenzhen. He then sneaked into Hong Kong. There was no evidence he was physically or mentally affected. The harm caused to the applicant did not meet the minimum level of severity or the definition of torture [47—48, 57—60 of the TCAB decision];

ii.      The dispute was private in nature. It was not within the definition of persecution. In fact, the applicant was safe at his friend’s home after the attack in July 2016. There was no evidence that “DO” could locate him anywhere in Vietnam. The COI showed that there was reasonable State protection. There was no evidence that the police were unable to protect him [49—56 of the TCAB decision];

iii.    There was no evidence that the applicant’s life would be arbitrarily deprived; and

iv.    There was no evidence that the Vietnamese authorities were involved. The applicant could safely relocate to Ho Chi Minh City, Da Nang or Quảng Ninh [63‑70].

Judicial Review

12.  The applicant filed the leave application on 15/10/2018. He repeated the basis of his claim in his affirmation. He stressed that the interest had since accumulated to a large sum. He was unable to repay. He would be killed if refouled.

13.  The applicant had given detailed evidence in the NCF. The adjudicator should not be criticized for not holding a hearing. The applicant did not raise any issue in this regard in his affirmation.

14.  The adjudicator had considered the evidence in detail. The adjudicator was justified in concluding that the risk of harm was remote. There was reasonable State protection and relocation options. This court agrees with the decision of the adjudicator.  There is no error of law or procedure. The decision is rational.

15.  The intended judicial review is not reasonably arguable. There was no reasonable prospect of success.

Conclusion

16.  This court refuses leave for the intended judicial review.

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