Dao Tien Hai v. Torture Claims Appeal Board

HCAL 285/2020

[2021] HKCFI 2276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 285 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 51-year-old national of Vietnam who entered Hong Kong illegally on 23 September 2015 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 authority of his home district over some land dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Hai Duong, Vietnam, but moved with his parents to Huyen Dam Ha in Quang Ninh Province in 1979 where his family owned a piece of farmland and upon which he assisted his parents with their farming.

3.In 2014 the local district authority proposed to build a road across the farmland of the affected villagers including his family and offered them monetary compensations but were found to be too low and were rejected, and led to angry confrontations between villagers and the district officers, during which the Applicant and some other villagers were forcibly detained by the authority during which they were threatened and beaten for several days before they managed to make their escape.

4.Two weeks later the local district authority sent workers onto the land to start building the road but were interrupted and stopped by the Applicant and other villagers, but when later security agents came to his home looking for him, the Applicant fled to Mong Cai where he stayed in a hotel, but one day after he was attacked by some unknown men with knives that he was injured and lost consciousness, but was rescued by a friend and taken back to his friend’s home.

5.After the assault the Applicant felt it was no longer safe to remain in Vietnam, and so he departed 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 2 March 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 again arrested by police on 28 April 2016 for assisting others to enter Hong Kong illegally for which he was subsequently convicted and sentenced to prison for 63 months.     

7.By a Notice of Decision dated 29 March 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 the local district authority upon his return to Vietnam as low due to doubt over the credibility of his claim, that there is no reliable evidence that he was being pursued by the Vietnamese authorities prior to his departure, that after all these years that any dispute over the crossing of a road on his family’s farmland would have been resolved one way or the other, that there is no reliable evidence of any official involvement in his alleged attacks prior to his departure 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 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 him to be located.

9.On 27 August 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision which appears to have been well outside the 14-day period to file his notice of appeal under Section 37ZS(1) of the Immigration Ordinance, but the Board somehow allowed his late filing without providing any reason in its decision, and for which the Applicant subsequently attended an oral hearing on 9 December 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 24 January 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found multiple inconsistencies and discrepancies in the Applicant’s evidence as to his family’s dispute with the local district authority over compensation for land resumption which were different from what he had earlier stated in his documents that it arose from attempts by private company to purchase his family’s land which had nothing to do with the government or authorities that it doubted and rejected the credibility of his claim of threats from the local district authority, and that in the absence of any official involvement that state or 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 perceived enemy that his claim for non-refoulement protection failed on all applicable grounds.

11.On 2 March 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 because he cannot go back to his home country where his life will be in danger but without putting forth any proper ground for his intended challenge. 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 69 – 75 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.Moreover, 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.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.Furthermore, the Applicant on 13 July 2021 wrote to the Court to request that his application be withdrawn as his problem in his home country has been resolved and that he can now safely return to Vietnam.

17.In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that the basis for his non-refoulement claim no longer exists, I accede to his request and accordingly dismiss his leave application.

Dated the 5^th day of August 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