Pham Van Thang v. Torture Claims Appeal Board and Another

HCAL 535/2018

[2020] HKCFI 2317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 535 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 36-year-old national of Vietnam who arrived in Hong Kong on 14 December 2013 with his wife with permission to remain as visitors up to 21 December 2013 when they did not depart and instead overstayed, and later surrendered to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the Applicant’s creditor for failing to repay his loan.  They were subsequently released on recognizance pending the determination of their claim.

2.The Applicant was born and raised in Hai Phong City, Vietnam.  After leaving school he worked in transportation field and later ran his building materials business in his home district, married his wife and raised a family of three children.

3.In 2010 for the purpose of his business the Applicant borrowed a loan from a local money-lender repayable within 3 years with interest charged on the principle sum payable every year until full payment of the loan, but by 2013 due to poor business he was unable to repay his loan, and when he and his wife received threats from the money-lender, they felt it was not safe to remain in Vietnam, and so on 14 December 2013 they departed for Hong Kong and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form on 6 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 8 August 2017 the Director of Immigration (“the Director”) rejected the claim of the Applicant and his wife on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

5.In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and his wife and assessed the level of risk of harm from his creditor upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from the creditor, that their problem with the 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 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 with his wife to other part of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for the creditor to locate them.

6.On 18 August 2017 the Applicant and his wife lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but before their appeal could be heard by the Board, on 9 August 2018 they wrote a letter to the Board to request to withdraw their appeal because it is “safe to return to Vietnam”, and in which they also confirmed that they understood that the withdrawal of their appeal would be a final disposition of their claim.

7.On 10 August 2018 the Board in writing informed the Applicant and his wife that their appeal/petition has been finally disposed of as withdrawn as follows:

“ The Board has considered your application to withdraw your appeals/petitions having regard to all the available information placed before it. After consideration, the Board is satisfied that your application to withdraw the appeals/petitions was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal of the appeals/petitions, namely, that you consider you are safe to return to Vietnam. Under the circumstances, the Board has given direction that your appeals/petitions are withdrawn. The Board has also directed that the immigration officer’s decision of 8 August 2017 is confirmed.

Please note that your appeals/petitions have now been disposed of and finally determined by the Board.  No further action will be taken by the Board in respect of your appeals/petitions.”  

8.Somehow for some unknown reason, even before their request to withdraw their appeal, the Applicant by himself alone filed a Form 86 on 3 April 2018 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 his life would be in danger if refouled to his home country 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 being clearly and properly identified by the Applicant, and given the fact that he did validly withdraw his appeal to the Board as noted above, I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

9.Furthermore, the fact that it has been established by the Director in his 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.       

10.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.

11.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 18^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