Nguyen Van Hai v. Torture Claims Appeal Board

HCAL 894/2018

[2020] HKCFI 2332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 894 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 56-year-old national of Vietnam who entered Hong Kong illegally on 8 September 2013, and for which he was arrested by police on 30 September 2013 and for using a forged identity card, and was later convicted and sentenced to prison for 15 months.  Upon his discharge and was referred to the Immigration Department for deportation, he then 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 Quynh Bieu Hamlet, Lien Hoa Commune, Quang Yen Town, Quang Ninh Province, Vietnam.  After leaving school he worked as a farmer for years until 2011 when he decided to purchase a fishing boat for fishing by borrowing a loan from a local money lender, with the loan repayable within one year and with interest charged at 10% on the loan payable every month until repayment of the loan.

3.The Applicant then bought his fishing boat for his trade, and during the first 6 months of 2011 he was able to make his monthly interest payment to his creditor without problem.

4.However, one day in July 2011 his boat was sunk by a storm, and as a result he lost his business and started to have difficulty making his payments to his creditor, and soon his creditor would come with his men to his home to make threats against him and his family, and after he was beaten by them on one occasion in February 2012, he then borrowed a loan from a bank to start a poultry business in the hope to make money to repay his creditor, but when a bird flu broke out two months later, all his poultry died and he lost his business again.      

5.As he was unable to repay his loans to the bank or the money-lender, the Applicant later departed Vietnam for China, and from there he sneaked into Hong Kong, and upon his arrest he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 26 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 15 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s 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”).

7.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 and his men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problem with them 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 93 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 or his men to locate him.

8.By a Notice of Further Decision dated 26 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his 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”).

9.By then the Applicant was 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 26 August 2016, and for which he attended an oral hearing on 23 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the Applicant’s evidence given at his appeal hearing vague, unpersuasive and inconsistent with his previous information given to the Director as to the details of his alleged loan borrowed from the money-lender or the events occurred to him prior to his departure, with his credibility further undermined by his failure to make his claim when he first arrived in Hong Kong that it did not accept that he had borrowed the loan from the local money lender or that he was threatened or harmed by his creditor and his men or that he would face any real risk of being harmed by his creditor upon his return to Vietnam, and that in any event in the absence of any evidence of official involvement that state/police protection would be available to him if resorted to that his claim for non-refoulemnent protection failed on all applicable grounds.      

11.On 21 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) that the adjudicator was biased against him for being an illegal immigrant in her assessment of the credibility of his claim;

(2) that the adjudicator was being selective or cherry-picking only those evidence against the Applicant and failed to take proper account of or put proper weight in all the evidence provided by the Applicant including documentary proof of his loan in her assessment of his credibility; and

(3) that the adjudicator erred in finding the Applicant’s evidence of his claim as vague and confused by failing to consider his claim as a whole.  

12.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant evidence available before it or being selective or improperly rely on those evidence in assessing the credibility of his claim, while the document which he claims to be evidence of his loan is in fact just a letter from his wife in Vietnam with information which the adjudicator found to be inconsistent from the Applicant’s evidence that the Board was entitled not to place any weight on its evidence value, while section 37ZD of the Immigration Ordinance allows the Board to take into account the Applicant’s behavior upon arrival in Hong Kong as damaging his credibility, and for the analysis set out in the Board’s decision regarding his evidence as to his claimed loan, I do not find any error in its determination of the credibility of his claim.  As such I do not find any of his grounds reasonably arguable for his intended challenge.

13.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.

14.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 36 – 45 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

15.Furthermore, the fact is 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.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.

17.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 21^st 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