Le Viet Duy v. Torture Claims Appeal Board

HCAL 2671/2018

[2021] HKCFI 1360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2671 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 39-year-old national of Vietnam who last entered Hong Kong illegally on 11 August 2016 and surrendered to the Immigration Department on the following day, and subsequently 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 Do Son District, Haiphong City, Vietnam. After leaving school he worked as a fisherman, but in 1989 he sneaked into Hong Kong presumably with his parents and was subsequently repatriated to Vietnam in 1992.

3.Upon returning to Vietnam, the Applicant attended the local school in his home district, and thereafter worked as a fisherman during which he became a drug addict, and in 2008 he again sneaked into Hong Kong where he was subsequently arrested by police for the offence of theft and drug possession, for which he was convicted and sentenced to prison for 23 months, during which he discovered that he had the AIDS disease before being repatriated to Vietnam in October 2009.

4.While back to his home district, the Applicant started to receive medical treatment and medication from his local hospital, and resumed his former trade as a fisherman, for which he then purchased a fishing boat by borrowing a loan from a local money-lender by the name of Hoang with monthly interest payable on the principal loan until its full repayment.

5.However, his health started to deteriorate and by 2014 he was barely able to work, and towards the end of 2015 he was unable to make any loan payment to Hoang, and as a result his boat was taken away by Hoang while her followers also made death threats against him, and so the Applicant fled from his home district and eventually in 2016 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 1 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While being released on recognizance pending the determination of his claim, the Applicant was arrested by the police for arson in 2017, for which he was convicted on 31 May 2017 and was sentenced to prison for two years.       

7.By a Notice of Decision dated 22 June 2018 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”).

8.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 or her men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, 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 (“COI”) 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 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 to locate him.

9.On 29 June 2018 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 17 September 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board during which the Applicant also claimed to fear of not able to receive proper medical care for his AIDS if refouled to Vietnam. On 5 October 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found some implausible assertions in the Applicant’s claim of fear of harm from his creditor over his loan and doubted the credibility of such claim, but found in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam that his claimed of risk of harm from his creditor failed on all applicable grounds, whereas for his other claim of fear of not getting proper medical care and treatment for his AIDS, the Board found no corroborating evidence from him such as his medical report in support of his claim of suffering from AIDS or that he would not receive proper medical treatment for AIDS in Vietnam, and concluded that in any event in his claimed medical condition that he had failed to establish a foreseeable and real risk of being seriously ill-treated in a manner sufficiently severe to justify non-refoulement protection that this claim also failed on all applicable grounds.     

11.On 26 November 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 stated that the decision was unlawful and unreasonable as the Board rejected his claim without considering all documentary evidence but without providing any details or particulars or elaboration how it was so, nor did he put forth any other proper ground for his intended challenge or request for 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 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 for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 56 in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in particularly as to his claim of fear of not being able to receive proper medical care for his AIDS, of which the Board did also take into consideration of the principles applicable under BOR3 Risk in its decision as follows:

“51. The Board noted that there is a secondary ground in relation to BOR3, as the Appellant has claimed that he is suffering from AIDS. In this regard, the Board had reference to the case of N v United Kingdom, which concerned a Ugandan citizen with HIV/AIDS who claimed that deportation to Uganda would be inhuman and degrading under European Convention on Human Rights article 3. N argued that she would be unlikely to get health treatment, and without such treatment she might only live for 2 years. In the circumstances the Board had a duty to consider a BOR3 claim due to AIDS.

52. It was a fundamental part of the Appellant’s claim that he was suffering from AIDS, but he failed or neglected to adduce any objective support for that medical diagnosis/condition. Common sense would have alerted the Appellant that he should adduce some documentary support of his assertion to the Board that “I am required to have a household registered in the location in order to receive medical treatment.”

53. The Appellant’s case in the NCF was that if refouled, he would not dare to register with the local authority to obtain the AIDS medication that he needed. He claimed that he dared not register because Hoang would be able to locate him through her connections with government officials if he registered. This is pure speculation. It relied on assumptions that Hoang paid bribes to local government officials; assumptions that the local government officials Hoang bribed would all do her bidding; assumptions that the bribes paid by Hoang to local government officials would affect the actions of every local authority throughout Vietnam; assumptions that local government officials in every corner of Vietnam would help persecute the Appellant because an official in a faraway government office had received a bribe from Hoang.

54. The Appellant had claimed that in Vietnam, a person would not receive medical treatment unless he had been registered in the locality/area of the hospital/clinic. He was asked about this registration problem at the Hearing. The Board reminded the Appellant that there was no COI (Country of Origin Information) adduced in support of that assertion, and commented that it was very difficult to accept such an assertion without any COI support …

55. The Appellant was reminded that there was no support for his assertion that he was suffering from AIDS, and consequently needed AIDS medication every day. The Appellant initially said that he could not understand why the Duty Lawyer had failed to insert such evidence in the Bundle. After further query, the Appellant said he did not obtain a certificate in support of his AIDS condition because he had been detained at all material times, and in detention one had to wait about 7 days before being allowed to see a doctor. The board pointed out that he had been n detained since April 2018. He had ample time to ask for a certificate from the prison doctor or the doctor attached to the CIC at any time between April to September 2018. There was no coherent reply.

56. Irrespective of whether the Appellant is indeed suffering from AIDS, the Board finds that his refoulement to Vietnam where the level of medical treatment for AIDS may not match Hong Kong will not, on the relevant jurisdiction trigger a foreseeable and real risk of being seriously ill-treated in a manner sufficiently severe to engage the protection of BOR3. The Board is aware that the House of Lords had decided in N that the facts were not sufficiently exceptional to justify halting deportation. By comparison, this Appellant’s claimed medical condition is much less serious.”  

14.I should note that subsequent to the Board’s decision, the Applicant did produce to the court a copy medical certificate dated 2 April 2019 issued by the Hospital Authority which stated as follows:

“This is to certify the above-named is tested positive for HIV in 2008 and first seen in our clinic in March 2009. He also has HCV coinfection (genotype 1). He is regularly follow-up in our clinic and his next follow-up will be on Sept 2019.

He is now on the following medications:

1/ Norvir (ritonavir) tablet – 100 mg – daily – oral

2/ Prezista (darunavir (as ethanolate)) tablet – 800 mg – daily – oral

3/ Truvada (emtricitabine 200 mg + tenofovir disoproxil fumarate 300 mg) oral tablet – 1 tablet – daily – oral” 

15.It is evidenced from this certificate that the Applicant is indeed HIV positive as he was tested as such more than 10 years ago in Hong Kong, and that he has been a regular follow-up patient at the clinic every several months and on daily oral medications.

16.However, it does not state that he is also suffering from AIDS, nor does being HIV positive necessarily follow that he also has AIDS or will get the disease in the foreseeable future, and given the findings of the Board as noted above regarding his access to medical care for AIDS in Vietnam, I do not find that the information revealed in the medical certificate could or would have assisted or advanced the Applicant’s case any further had it been presented before the Board during his appeal hearing, and I agree with the Board that his medical condition as claimed does not give rise to any concern of a real risk that his refoulement to Vietnam would be contrary to the standards of BOR3 ground.     

17.As for his claimed fear of harm from his creditor, the fact is that it has been established by the Director in his decision that such risk of harm 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 also no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

18.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.

19.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 13^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