Bui Minh Hai v. Director of Immigration

HCAL 435/2018

[2020] HKCFI 1297

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 435 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Vietnam who last entered Hong Kong illegally on 15 April 2016 and surrendered to the Immigration Department on 5 July 2016 when 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 Thuy Nguyen District, Haiphong City,Vietnam.  After leaving school he worked in various jobs, and in 2014 he borrowed a loan from a local money-lender to start his hedgehogs farm business, with the loan to be repaid by monthly instalments with interest over 10 years.

3.Initially the Applicant had no difficulty making the monthly loan repayments, but in 2015 many of his hedgehogs died from infectious disease that he had to close down his business, and as a result he was unable to make any more loan repayments.

4.About one month later the money-lender sent his men to demand payment from the Applicant, and when he was unable to do so, they beat him with wooden sticks that he lost consciousness and later required medical treatments, but he did not report the matter to the police for fear of revenge from the money-lender who was a powerful gangster in his home district.

5.About 10 days later the money-lender again sent his men to demand payment from the Applicant, threatening to chop off his hands if the loan was not repaid soon.  Fearing for his life the Applicant fled to Ho Chi Minh City to hide in his friend’s place, and on 18 May 2015 he departed Vietnam and entered Hong Kong illegally where he was subsequently arrested and was on 24 June 2015 repatriated to Vietnam.

6.Upon returning to Vietnam, the Applicant was afraid to return to his home and instead hid in Móng Cái to avoid his creditor, but as he was still fearful of being located by his creditor, he departed Vietnam again on 13 March 2016 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 21 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 15 May 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 (“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”).

8.In his decision the Director took into account 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 him,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 work 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.

9.The Applicant then 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 18 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and implausibility in the Applicant’s account of events occurred in Vietnam prior to his departure that the core of his claimed assault and threats lacked credibility, and concluded that he faces no real risk of harm upon his return to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.

11.On 19 March 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 repeated his claim that his life would still be in danger in Vietnam and that he should not be deported,but did not identify any error of law or procedural unfairness committed by either the Director or the Board in their decisions.

12.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.

13.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 65 – 71 of its decision with the benefit of hearing him in evidence and in answer to questions raised on his claim at the oral hearing of his appeal, 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 findings of the Director or the Board.

14.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.

15.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.

16.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 2^nd 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