Thai Manh Tuan v. Torture Claims Appeal Board

HCAL 558/2021

[2021] HKCFI 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 558 of 2021

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:

1.  extension of time be granted for the Applicant’s late Notice of Application for Leave to Apply for Judicial Review; and

2.  the application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Vietnam who entered Hong Kong illegally on 11 July 2019 and was arrested by the police on 21 July 2019 for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim for protection with the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor for failing to repay his loan, and upon his discharge from prison, he was detained at the Immigration Department pending determination of his claim.

2.The Applicant was born and raised in Ngo Quyen District, Hai Phong City, Vietnam. After leaving school he worked in various jobs in his home district, got married and raised a family of 2 children.

3.In May 2018 he purchased a tourist van for his touristy business by borrowing a loan from a local money-lender repayable within 1 year with monthly interest payments until repayment of the loan.

4.However, he lost his business in October 2018 when his van was crashed in a traffic accident, and as a result he was unable to repay his loan, and after being threatened and beaten by men sent by his creditor over his outstanding loan, the Applicant became fearful for his life, and so on about 8 July 2019 he departed Vietnam for China, and from there he sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 26 May 2020 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 29 June 2020 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 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 there was no real intention on the part of his creditor to seriously harm him other than to put pressure on him to repay his debt, that in any event 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 (“COI”) shows that reasonable internal relocation alternatives are available in Vietnam with a large population of 98 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 parts 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.

7.On 7 July 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not find necessary to hold any oral hearing and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 18 January 2021 it dismissed the appeal and confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his outstanding debt but found it was a personal monetary dispute between them without any evidence of official involvement that state/police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

9.On 20 April 2021 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 or in his supporting affirmation of the same date he merely repeated his claim to be allowed to remain in Hong Kong to avoid his problem back home but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

10.While the Applicant was slightly late by 2 days with his application without any explanation, given its insignificant delay and the fact that he has been detained at the Immigration Department, I allowed his late application and proceed to consider the merits of his application, but as noted above 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 Applicant, I do not find any reasonably arguable basis for his intended challenge.

11.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. 

12.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 parts 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.     

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 Applicant’s claim.

14.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 10^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