Hoang Dinh Quy v. Torture Claims Appeal Board

HCAL 714/2021

[2021] HKCFI 2791

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 714 of 2021

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 28-year-old national of Vietnam who last entered Hong Kong illegally on 25 December 2012 and subsequently on 17 June 2014 surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his fellow villagers over some religious dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Buddhism in a village in Do Son District, Haiphong City, Vietnam. After leaving school he assisted his father in fishing, got married and raised a family with a son.

3.In 2011 his started to hold religious meetings with his fellow Buddhists in his home but which were suspected by some of his neighbours of hosting illegal activities and complained to the police, and when he heard that he had been summoned to the local police station for investigation, he became fearful for his safety and fled to Mong Cai, and from there he departed for China and later sneaked into Hong Kong where he was subsequently arrested by police and repatriated to Vietnam in March 2012.

4.Upon returning to Vietnam, as he was still fearful for his safety, the Applicant therefore departed Vietnam again on 18 December 2012 for China, and from there he again sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 20 November 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police on 24 September 2018 for theft and was subsequently convicted and imprisoned for 29 months.     

6.By a Notice of Decision dated 18 December 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”).

7.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 fellow villagers upon his return to Vietnam as low due to the absence of any past ill-treatment from them, that there is no evidence that he has been wanted by police for investigation and in that in any event in the absence of 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 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 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 fellow villagers to locate him.

8.On 4 January 2021 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 2 March 2021 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 17 March 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence between those given in his NCF to the Director and in his oral hearing before the Board that it doubted the credibility of his claim, and found in any event no evidence of any past threats or ill-treatments inflicted by his fellow villagers or the police that state 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 that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 17 May 2021 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 the decision was unfair and unjust but without putting forth any proper ground for his intended challenge, nor did he 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.

11.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.

12.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 8 – 14 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.  

13.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.     

14.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.

15.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 16^th day of September 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