Vu Duc Thai v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2046/2020

[2021] HKCFI 1987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2046 of 2020

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 submission by the Applicant in open court;

Order by Deputy High Court Judge P. Li:

     Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant entered Hong Kong from China illegally in November 2016.  He was arrested by the police on 16/5/2017.  He was imprisoned for 15 months for illegal remaining in Hong Kong.  He filed his non-refoulement claim on 12/10/2019.[1]

2.The basis of his claim was that he would be harmed or killed by the loan shark (‘C’) if he returned to Vietnam.  He was unable to repay the debt.

3.The Director of Immigration (‘the Director’) dismissed his claim on 23/6/2020.  His appeal to the TCAB was dismissed on 16/9/2020.  He filed an application for leave for judicial review on 12/10/2020.

Background

4.The applicant was born on 15/12/1983.  He was raised in Tien Tien Commune, Hai Duong, Vietnam.  He married in 2009 with 2 children.  He had other siblings in Vietnam.  He finished primary school education.  He was a self-employed labourer from 1998—2015.

5.In 2014, he borrowed 900 million VND from C for betting on soccer.[2]  C was a loan shark and a gang leader.  C was active in Hai Duong Province.  He lost and owed C a debt of 1,500 million VND.  He had to pay 15 million VND as monthly interest.  He had to settle the debt within a year.  He was unable to keep up with the repayment.  C and his gang assaulted him from time to time.

6.In May 2015, C and his gang confronted him for repayment.  He was unable to repay.  They assaulted him for half an hour.  He was injured at his head and body.  He could not afford hospital treatment.  It took 15 days to recover.

7.C and his gang came for the 2^nd time later.  They beat him for an hour.  His family members reported to the police.  C and his gang left before the police arrived.  He bought some medicine to treat his injuries all over his body.  It took 20 days to recover.

8.There was a 3^rd attack in which C and his gang beat him with sticks for 45 minutes.  His calf muscle was badly hurt.  He bought some medicine to lessen the pain.  It took 2 months to recover.  The police opined that it was a private matter and did not take action.

9.During the 4^th attack, C and his gang beat him with sticks for nearly 2 hours.  He begged C to stop.  He had wounds and bruises all over his body.  He had treatment from a doctor at the commune clinic and stayed there for 4 days.  It took more than a month to recover.

10.He decided to seek work in Hong Kong to earn money for the debt.  He first moved his family to his in-laws at Tien Lang District, Hai Phong.  He left Vietnam in September 2015 to China on a valid pass.  He took a bus to Shenzhen and sneaked into Hong Kong by boat.  He was arrested and repatriated to Vietnam in October 2015.  He stayed away from his family and lived in a hostel at Da Nang.

11.Meanwhile, C harassed his wife for repayment.  C knew he was at Da Nang.  He then moved to a hostel in Saigon.  He worked as a labourer during this period.

12.One day, someone came to the hostel enquiring about him.  He immediately moved to Hai Phong until October 2016.

13.Later he decided to leave Vietnam. He contacted his wife to bring some money and documents.  However, C and his gang followed his wife and tracked him down.  He was abducted to an abandoned house.  He refused to sign a new agreement to loan his land property to C.  He was tortured and assaulted until he fainted.  Those men then left.  A passer-by rescued him and took him to a clinic.  He received treatment for 2 days in the clinic.  He stayed with that passer-by in Thai Binh for a week.  He did not want to reveal his whereabouts and did not report.

14.In early November 2016, he sneaked into China and stayed for about a month.  He then went to Shenzhen and sneaked into Hong Kong in late November 2016.

15.He met an unknown Vietnamese man in a park who offered him illegal work in Hong Kong.  He was not allowed to have outside contact.  He was subsequently arrested in May 2017 and sentenced to imprisonment.  He filed an application for non-refoulement claim in 2019 while serving sentence.

16.His family informed him that C was still looking for him.  However, his family were safe.  He thought C would be able to locate him anywhere in Vietnam.  He believed that C had bribed the police.  He alleged that the police were corrupt and ineffective.

The decision of the Director of Immigration

17.The Director concluded that the risk of harm from C was low for the following reasons:

(a)  The 4 assaults in 2015 were of low intensity.  He recovered in 15-20 days despite no professional medical treatment.  He then planned to go to Hong Kong to earn money travelling through China.

(b)  Even after the 5^th assault which was allegedly more serious, he recovered in a week.  He sneaked to China and Hong Kong shortly after recovery.  Had C wanted to kill him, they had plenty of chances.  All these incidents indicated that C only intended to put pressure on him for repayment.  The risk of harm from C was low and not imminent.

(c)  While the applicant stayed away from home at Da Nang, C was unable to locate him.  Even when he subsequently moved to Saigon, C did not confront him directly.  This indicated that C’s influence was localised.  There was no evidence that C would employed resources to track him down all over Vietnam.

(d)  The Director pointed out that public officials and the police in Vietnam had violated the law with impunity.  There was endemic corruption and political influence on the police.  However, there was the new Anticorruption Law in 2019 which was more effective in scrutinizing the income and assets of public officials.  Ministers and public officials were punished for corruption.  There were special units to tackle loan sharks.  The Director found that the Vietnam government had the determination to tackle malpractices and misconduct of the police.  There was no evidence that the police inaction was systematic.  There was reasonable state protection.

(e)  Internal relocation was permissible under the law in Vietnam which was a large country with a population of nearly 100 million.  It was not unduly harsh for the applicant to relocate to Hanoi or Can Tho City given his age and experience.

18.There was no genuine and substantial risk of ill-treatment or arbitrary deprivation of life if he returned to Vietnam.  The claim under BOR 2 and 3 were rejected.

19.The ill-treatment to the applicant by C arose from a loan dispute.  His situation was not within the ambit of ‘persecution’ as defined under the Refugee Convention.  The claim of persecution risk failed.

20.There was no severe pain or suffering amounting to ‘torture’ as defined under s.37U (1) of the Immigration Ordinance.  The conduct of C was not instigated by any public officials or under their acquiescence.  The applicant was not targeted by the Vietnam government.  The torture claim failed.

The decision of TCAB

21.An oral hearing was held on 1/9/2020.  The applicant gave evidence.  He confirmed the truth and correctness of the evidence in the Bundle.

22.The Adjudicator pointed out various aspects of the applicant’s evidence which showed that he was unreliable.  The following is the salient points:

(a)  The applicant only earned a monthly income of about 3 million VND at that time.  The loan/debt of 900 million and 1,500 million VND was vastly disproportionate to his repayment ability.  There was no mention of any collateral in the NCF.  The applicant however added that he showed C his land title deed.  This was not mentioned in the NCF.

(b)  There was no agreement signed for the loan of 900 million VND which accumulated to 1,500 million VND eventually.  This situation was highly improbable given the huge sum involved.

(c)  The applicant refused to sign any agreement to loan his land property to C.  The title deed was not used as a collateral.  The applicant agreed that dealings in land title was subject to government permission.

(d)  When the applicant decided to seek asylum in Hong Kong in 2016, the title deed of his house would be an important document.  He did not bring the document before leaving Vietnam.

(e)  C had pressurized the applicant for repayment at various places.  However, they failed to get his signature on any agreement even after the 5^th assault.  They even left the applicant alone mistakenly thought he was dead.  These events were most unconvincing.

(f)  The applicant came back to Hong Kong to seek asylum.  He however did not lodge his non-refoulement claim immediately on arrival but sometime after his arrest.  He only formally lodged his claim in October 2019 when he was serving imprisonment in Hong Kong. This undermined his credibility.

23.Given the above, the adjudicator found that the applicant not credible.  All core assertions were wholly unreliable.  The adjudicator rejected the applicant’s version of facts in support of his non-refoulement claim.

24.The adjudicator concluded that there was reasonable state protection in Vietnam.  The State had no connection with C.  It did not acquiesce the alleged ill-treatment.

25.The adjudicator rejected all the claims of the applicant.

Judicial Review

26.The applicant applied for leave for judicial review on 12/10/2020.  In his affirmation in support of the leave application, he disagreed with the decision of the TCAB.  There was no specific complaint about the decision of the TCAB.

27.The applicant wrote to his court on 8/6/2021.  He indicated that he did not want to attend any hearing. He had no additional information for the court.

28.The adjudicator had set out the legal principles in detail.  She had considered the evidence thoroughly. The findings were reasonable.

29.I agree with the decision of the adjudicator.  The evidence of the applicant was not credible.  There is no error of law or procedure.

30.In my judgment, the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.  I refuse leave for judicial review.

Dated the 8^th July 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