Nguyen Van Tuan v. Torture Claims Appeal Board

HCAL 1082/2018

[2020] HKCFI 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1082 of 2018

BETWEEN

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 58-year-old national of Vietnam who entered Hong Kong illegally on 16 May 2015 and was arrested by police on the same day.  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 Huyen Hung Ha Town, Huyen Hung Ha County, Tinh Thai Binh Province, Vietnam.  After leaving school he worked in various jobs until 1995 when he started his furniture business, and got married and raised a family of 3 children in his home town.

3.In 2012 with a view to expand his business, the Applicant borrowed 5 billion Vietnamese Dong (“VND”) from a local money-lender repayable within 3 months with interests payable at 36% to 48% per month until full payment of the loan.

4.However, after spending the entire loan on purchasing goods for his business, a fire burnt down his godown and all his goods, and as a result he lost his business and was unable to repay his loan.

5.One day in March 2013 his creditor came with several triad members to the Applicant’s home to demand repayment of his loan, and when the Applicant explained that he was having financial difficulties after the loss of his business, his creditor threatened that he would be killed if his loan was not paid up soon.

6.About two weeks later, his creditor came again with several men to demand loan payment from him, and when the Applicant was unable to do so, his creditor and his men proceeded to beat him viciously until his neighbours came to his help.  After his creditor and his men left, the Applicant was taken to the local hospital for medical treatments where he was hospitalized for about a week, but he did not report the matter to the police as he feared that they were under the influence of the money-lender who was known to be an influential triad in the area.

7.For the following year or so, the Applicant was subject to vicious beating almost every other month by his creditor and his men with wooden sticks and iron rods which required medical treatments and sometime lengthy hospitalization, but in early 2015 after he was warned by his creditor that next time he would be killed if his loan was still not repaid within one month, the Applicant decided to leave Vietnam to save his life, and so he left his home town for Hanoi, and from there he departed for China, and later sneaked into Hong Kong on 16 May 2015, and upon his arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 24 December 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

8.While being released on recognizance pending the determination of his claim, the Applicant was arrested again on 16 March 2016 for undertaking unauthorized employment and for which he was subsequently convicted and sentenced to prison for 15 months.         

9.By a Notice of Decision dated 26 January 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”).

10.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 his creditor or his men, that there was no real intention on the part of his creditor to kill him other than to put pressure on him to repay his loan, that in any event it was a personal 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 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.

11.On 9 February 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 12 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 9 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence that it doubted his claim of having borrowed 5 billion from his creditor or his subsequent loss of his business or the threats and violence inflicted on him by his creditor and his men for more than a year without seeking any help from the police which caused his eventual departure from Vietnam for China and Hong Kong as unreliable and incredible, that in any event in the absence of any evidence of official or state involvement that state protection as well as reasonable internal relocation are available that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move safely to other part of Vietnam that his claim for non-refoulement protection failed on all applicable grounds.     

13.On 13 June 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, and in his supporting affirmation of the same date he merely repeated his claim that his life would be at risk of harm from his creditor and asked for further time to remain in Hong Kong until his family is able to repay his loan.  As such the Applicant has failed to identify any error of law or procedural unfairness either in his process before the Board or in its decision for his intended application. 

14.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.

15.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 53 – 61 of its decision and with the benefit of hearing him in oral evidence and in his answers to questions raised of his claim during his appeal hearing, 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 to challenge the finding of the Board.     

16.Furthermore, 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.     

17.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.

18.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 9^th day of July 2020. 

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