Vu Van Quang v. Torture Claims Appeal Board

HCAL 2019/2020

[2021] HKCFI 2230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2019 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 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 37-year-old national of Vietnam who entered Hong Kong illegally on 23 November 2016 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by the local security agents over certain land dispute in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hai Phong, Vietnam where he and his family lived on a piece of land owned by his mother.

3.In 2009 the local government exercised resumption of land in the Applicant’s home village, and sent the village leader to make offers to his family and other villagers to purchase their land, but which they considered as too low and rejected the offers, and for whom the Applicant wrote to the mayor of Hai Phong City stating that the government’s offers were rejected as they would not sell their lands at the offered prices.

4.One night in 2010 some men came to the Applicant’s home and threatened him to accept the government’s offers, and when he refused, they revealed they were security agents and arrested him over a false charge of possession of illegal drugs and took him to the local police station where he was detained and beaten, and was subsequently charged for the false crime for which he was convicted and sentenced to prison for 9 years.

5.In August 2016 the Applicant was allowed an early release from prison due to good behavior, but was subjected to surveillance for 3 years during which he was unable to obtain any working permit, and so he could only work in his family’s farmland planting vegetable and raising livestock, and as he feared of further threats from the local security agents, he departed Vietnam on 21 November 2016 for China, and from there he later sneaked into Hong Kong, and upon his arrest he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 May 2020 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 again arrested by police on 17 May 2017 for burglary for which he was subsequently convicted and sentenced to prison for 3 years, during which he requested to withdraw his non-refoulement claim as his problem in Vietnam had been resolved, but later upon his discharge from prison and was referred to the Immigration Department for deportation, he raised his claim again on the same basis.       

7.By a Notice of Decision dated 17 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that there will be any real risk of harm from the local security agents upon his return to Vietnam due to serious doubt over the credibility of his claim upon finding inconsistencies and discrepancies in his evidence, that in any event if his claim is true that having already served his prison term and after all these years that there is no reason for those security agents to have any further adverse interest in him, that any fear of further false charges from those local security agents would be negated by state or police protection as well as his rights under the Vietnamese legal system, 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 98 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 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 those local security agents to locate him.

9.On 29 June 2020 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 27 August 2020 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 14 September 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence and in the documents produced by him which showed various discrepancies and contradiction that it doubted the authenticity of his documents and the credibility of his claim of fear of harm from the Vietnamese authorities, that in any event on his admission at the appeal hearing that the Vietnamese government have since his departure abandoned the plan of land resumption in his home village that there is no reason to fear any such risk of threats or harm upon his return to Vietnam that the Applicant’s claim of non-refoulement protection in Hong Kong failed on all applicable grounds.    

11.On 7 October 2020 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 just stated that he does not agree with the decision as it is grossly unfair and unjust but without providing any particulars or elaboration why it is so, nor did he put forth any other ground for his intended challenge or 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 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 26 – 29 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 if true 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 30^th day of 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