Nguyen Khac Hoang v. Torture Claims Appeal Board and Another

HCAL 805/2018

[2020] HKCFI 2223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 805 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 30-year-old national of Vietnam who entered Hong Kong illegally on 24 February 2015 and was arrested by police on 25 February 2015.  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 Tushan County, Hai Phong, Vietnam.  After leaving school he ran a shrimp business in his home district.

3.In early 2013 he purchased a vehicle with freezer for his shrimp business by borrowing a loan from the local money-lender with interest payable monthly until the loan was paid off.

4.Initially the Applicant was able to make his monthly interest payment to the money-lender from his business profit without difficulty, but when his business turned bad in late 2014 and was eventually closed down, he was unable to make any payments towards his loan, and as a result the money-lender had sent his men to beat him and threatened to kill him if he still failed to repay his loan, and despite having sold his vehicle and with loans from his relatives, he was still unable to pay off his loan, and fearing for his life, he therefore departed Vietnam on 23 February 2015 for China, 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 on 11 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 7 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”).

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 the money-lender and his men 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 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 the money-lender or his men to locate him.

7.On 14 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 26 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 3 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of being threatened by his creditor for failing to repay his loan, but found that the treatments received by him did not fall within the applicable risks, and that in any event with state/police protection available 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 by his creditor that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 8 May 2018 the Applicant 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 attached copies of those decisions but without putting forward any proper grounds 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 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 decision 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.

Dated the 9^th day of September 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