Pham Van Pha v. Torture Claims Appeal Board

HCAL 1479/2018

[2021] HKCFI 1270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1479 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 64-year-old national of Vietnam who had repeatedly entered Hong Kong illegally since 1989, and on his last occasion after having sneaked in from China in May 2017, he surrendered to the Immigration Department on 1 June 2017 and 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 creditor. 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 fisherman, got married and raised a family of 3 children.

3.Between 1989 and 2007 he had illegally entered Hong Kong on some 8 occasions, and upon each subsequent arrest, conviction and sentenced to prison for terms ranging between 10 and 29 months, he would invariably be repatriated back to Vietnam.

4.After his last repatriation to Vietnam in 2007, he resumed his trade as a fisherman, and in 2012 he borrowed loans from 3 different creditors for repairing his fishing boat, but when it later became too dilapidated for any use, he was unable to repay his loans, and when his creditors started to threaten and assault him over his failure to repay his loans, he again departed Vietnam in May 2017 for China, and from there he again sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 16 November 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”).

6.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 creditors upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that they were private monetary disputes 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 (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 96 million people spread across a vast territory of more than 330,000 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 creditors to locate him.

7.On 23 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find it necessary to conduct any oral hearing and proceeded to deal with his appeal in his absence and on paper. On 18 July 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board did not take any issue with the credibility of the Applicant’s claim and accepted his accounts of threats from his creditors over his failure to repay his loans, but found in the absence of any official involvement that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located by his creditors that his claim for non-refoulement protection failed on all applicable grounds.  

9.On 27 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’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 he would be killed by his creditor if returned to Vietnam but without putting forward any proper ground 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 irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Board, I do not find any reasonably arguable basis for his 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 Applicant’s case, 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 his 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.     

12.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.

13.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 7^th day of May 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