Nguyen Van Cuong v. Torture Claims Appeal Board

HCAL 301/2018

[2021] HKCFI 2268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 301 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 43-year-old national of Vietnam who last entered Hong Kong illegally on 25 August 2015 and surrendered to the Immigration Department on 28 August 2015 when he 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 Phuong Le Loi, Thanh Pho Bac Giang, Tinh Bac Giang, Vietnam. At the age of 11, he first entered Hong Kong illegally in August 1989 under a false identity, for which he was arrested by police in 1995 and was subsequently convicted and sentenced to prison for 6 months before being repatriated to Vietnam in February 1997.

3.From 2000 to 2007 he repeatedly sneaked into Hong Kong again on no less than 4 occasions for which he was arrested, convicted and sentenced to prison on each occasion before being repatriated to Vietnam.

4.In 2008 he settled down in his home district by working as a truck driver, and in 2013 he started his own delivery business and purchased a goods van by borrowing a loan from a local money lender repayable within 5 years and with interest payment every month.

5.However, by 2015 his business did not fare well, and he started to have difficulty making his monthly interest payment, and after his creditor had complained to the police against him, the Applicant sold his van and house to pay off most of his loan, but his creditor insisted that he should pay off the remaining balance or else he would go to the police again.   

6.Fearing of further threats and harassments from his creditor, the Applicant departed Vietnam on 22 August 2015 for China, and from there he again sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 7 November 2016 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 upon his return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from his creditor, 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 310,000 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.However, instead of lodging an appeal to the Torture Claims Appeal Board (“Board”) to challenge the Director’s decision, the Applicant on 26 February 2018 filed a Form 86 in these proceedings for leave to apply for judicial review of a Board’s decision which he dated on 1 February 2018, and without putting forth any ground for seeking relief in his Form or his supporting affirmation of the same date in which he just repeated his claim that he would be killed by his creditor if returned to Vietnam, nor did he request any oral hearing for his application.

10.Upon subsequent enquiry made with the Board which revealed that the Applicant was then serving a prison sentence in Hei Ling Chau Correctional Institution, and that he did not lodge his appeal to the Board until later (8 October 2019), and as such I directed that his leave application for judicial review of the Board’s decision be adjourned pending the outcome of his appeal to the Board.

11.On 3 July 2020 the Applicant attended an oral hearing for his appeal before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board, and on 23 June 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

12.In its decision the Board found multiple inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his creditor, that in any event it was a private monetary dispute between him and his creditor that any legal sanction from the authorities arising therefrom is a normal and natural consequence under the legal system in Vietnam, that in the absence of any official involvement that state or police protection will 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 creditor that his claim for non-refoulement protection failed on all applicable grounds.

13.Upon being notified by the Board and receiving a copy of its decision dismissing the Applicant’s appeal, the Court on 6 July 2021 wrote to the Applicant at his last reported address provided by the Immigration Department to invite him to lodge his written submissions for his leave application within 14 days, on 2 August 2021 which he did but only repeated his claim as before 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.

14.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.

15.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 81 – 89 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.  

16.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 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.     

17.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.

18.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 11^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