Le Van Hung and Others v. Torture Claims Appeal Board

HCAL 903/2018

[2020] HKCFI 2339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 903 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 Applicants:

1.The Applicants are a married couple and their son all of Vietnamese nationality who entered Hong Kong illegally on separate occasions in late 2014 and early 2015, and upon their subsequent surrender to the Immigration Department, they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by their creditor for failing to repay their loan.  They were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant (“A1”) was born and raised in Cam Pha City, Quang Ninh, Vietnam.  After leaving school he worked in various jobs, married the 2^nd Applicant (“A2”) and raised a family of two children, a daughter and the 3^rd Applicant (“A3”), and started to run his own seafood business in 2007 in his home district. 

3.In 2013 A1 borrowed a loan from a local wealthy businessman for his seafood business, with the interest charged on the principle sum payable every month until repayment of the loan, but when his business was destroyed by a typhoon in November 2013, his creditor demanded repayment of the loan, and when A1 was unable to do so, his creditor started to send his men to threaten him over the default of his loan repayments, which caused him to flee to Mong Cai and eventually departed on 12 October 2014 for China,  and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, and when he heard that his creditor also made threats against his family, he then made arrangement for A2 and A3 to also depart Vietnam for Hong Kong via China in January 2015, for which he completed a Non-refoulement Claim Form on 7 May 2016 jointly for all three of them, 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 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 Applicants’ claim and assessed the level of risk of harm from the 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 Applicants 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 A1 and A2 as able-bodied adults with working experience to move with A3 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.By a Notice of Further Decision dated 1 March 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 19 August 2016, and for which they attended an oral hearing on 12 October 2017 before the Board during which A1 gave evidence and answered questions put to him by the adjudicator for the Board.  On 13 April 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board found A1’s evidence vague and evasive totally devoid of details and with serious inconsistencies and discrepancies that it doubted his claim of having borrowed a loan or was subsequently threatened by his creditor that it rejected the Applicants’ claim of fear of harm from the creditor upon their return to Vietnam that their claim for non-refoulement protection essentially based on a monetary dispute without any official or political involvement failed on all applicable grounds.   

9.On 23 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in their supporting affirmation of the same date they merely repeated their claim that their lives would be in danger if returned to Vietnam without putting forward any proper ground for their intended application, nor did they request any oral hearing for their application.  As such I do not find any reasonably arguable basis for their 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 Applicants’ case, the Board rejected their claim essentially on its adverse finding on A1’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 35 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.  

12.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

13.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 Applicants’ claim.

14.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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