Nguyen Duy Quan v. Torture Claims Appeal Board and Another

HCAL 914/2018

[2021] HKCFI 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 914 of 2018

BETWEEN

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 oral submissions by (counsel for) the Applicant in open court / the Applicant being 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 40-year-old national of Vietnam who last entered Hong Kong illegally on 13 June 2014 and surrendered to the Immigration Department on 22 September 2014 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by the Vietnamese authority or police over his religious belief. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Haiphong City, Vietnam. After leaving school he worked as a cook in a hotel in his home district, but in 2012 he resigned from his job and came to Hong Kong illegally where he undertook unauthorized employment, and was arrested by police in January 2013 for which he was also charged for possession of a forged identity card, and was subsequently convicted of both offences and sentenced to prison for 15 months, and upon his discharge he was repatriated to Vietnam in December 2013.

3.Upon returning to Vietnam, the Applicant met a local leader of the Cao Dai religion and became interested in the religion by attending its worship and preaching, but one day in March 2014 while he and other followers were meeting in the leader’s home, the police arrived to arrest them, and although the Applicant managed to escape through the back door to hide in a friend’s place, when he later heard that the police were looking for him everywhere, he therefore departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 15 February 2017 the Director of Immigration (“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”).

5.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 authorities or police upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that in the absence of any objective or reliable evidence that his claimed fear of persecution by the police was found to be doubtful and unreliable, that reliable and objective Country of Origin Information (“COI”) show that the State guarantees Vietnamese citizens’ right to religious freedom and that there are laws and state/police protection from religious persecutions available to the Applicant if resorted to, and that reasonable internal relocation alternatives are also 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 to locate him.

6.On 24 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 October 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 7 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s account of critical events at the appeal hearing compared to those given to the Immigration Department that it doubted his claim of conversion to Cao Dai religion and his subsequent fear of harm and persecution from the Vietnamese authority and police as unreliable and incredible which were also not borne out or supported by the latest COI which show that there were 2 million Cao Dai followers in Vietnam recognized by the government and protected by law as to their rights to religious freedom and from persecutions that state/police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other area away from his home district such as Ho Chi Minh City where he had stayed before without incidents that his claim for non-refoulement protection failed on all applicable grounds.       

8.However, before the Board was to deliver its decision, the Applicant earlier on 24 May 2018 filed a Form 86 for leave to apply for judicial review of the Director’s decision, 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 but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

9.On 30 July 2020 the court wrote to the Applicant to ask him to confirm that it is the Board’s decision that he in fact meant to apply for judicial review notwithstanding the fact that it had then not been delivered by the Board, and that he may submit further or additional representation and/or submission within 14 days in support of his application.

10.No response has been received from the Applicant, and as it has been held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, CACV 54/2018, 24 August 2018, that the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by a claimant, as in the present case, I therefore treat the application now before me as one by the Applicant for leave to apply for judicial review of the Board’s decision.

11.The Applicant however as noted above has not put forward any proper ground for his intended challenge and notwithstanding the subsequent invitation for him to do so, 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.   

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 21 – 35 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.  

14.Furthermore, 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 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.     

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 8^th day of April 2021.

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