Pham Duc Bang v. Torture Claims Appeal Board

HCAL 492/2021

[2021] HKCFI 3566

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 492 of 2021

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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 the Applicant 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 31-year-old national of Vietnam who entered Hong Kong illegally on 2 January 2020 and was arrested by police on 10 January 2020 for theft for which he was subsequently convicted and sentenced to prison for 2 weeks. After his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Minh Duc, Huyen Thuy Nguyen, Hai Phong, Vietnam. After leaving school he raised pigs for sale in his home district to make his living, got married and raised a family of 4 children.

3.In 2019 he expanded his business by borrowing a loan from his creditor repayable by monthly instalments, but in December 2019 his stocks were wiped out by African swine fever that he lost his business, and when he was unable to repay his loan, he was beaten by his creditor and his men with knives and hammers that he suffered a broken arm with cuts all over his body, and after his discharge from hospital, he fled from his home to hide from his creditor, and on 2 January 2020 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 April 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 27 May 2020 the Director of Immigration (“The 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”).

5.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 and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of his creditor to seriously harm the Applicant other than to put pressure on him to repay his loan, that in any event it was a private monetary dispute 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 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 his creditor to locate him.

6.On 8 June 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decision, and for which he attended an oral hearing on 24 February 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 29 March 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found serious inconsistencies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm form his creditor for leaving his home country for Hong Kong, and that in any event that it was a private monetary dispute between him and his creditor without any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away form his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.   

8.On 9 April 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 repeated his claim of fear of being killed by his creditor over his outstanding debts if refouled to his home country without putting forth any proper grounds for his intended challenge, nor was he able to do so at the hearing of 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.

9.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.

10.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 35 – 38 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. 

11.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions 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.                

12.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.

13.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 26^th day of November 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