Dinh Van Gioi v. Torture Claims Appeal Board

HCAL 1324/2021

[2021] HKCFI 3848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1324 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 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 first entered Hong Kong illegally in 2016, and after his arrest by the police he raised a non-refoulement claim which was subsequently rejected and was repatriated to Vietnam on 26 March 2019, but one year later on 4 July 2020 he again entered Hong Kong illegally and was arrested by police on 3 October 2020, and after he was referred to the Immigration Department for investigation, he raised another 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.  

2.The Applicant was born and raised in Xa Lap Le, Huyen Thuy Nguyen, Hai Phong City, Vietnam.  After leaving school he assisted his parents in farming in his home village, and as noted above in 2016 he sneaked into Hong Kong, and after his arrest by the police he raised a non-refoulement claim which was subsequently rejected by the Immigration Department and was repatriated back to Vietnam in March 2019.

3.Upon returning to his home village, he decided to start an inn and restaurant business by borrowing a loan of 1,000 million Vietnam dong from a local money lender with interests on the loan payable every month until its discharge.

4.However, his business did not done well due to the Covid-19 pandemic and had to be closed in late 2019, and when he was unable to repay his loan, he was threatened by his creditor and beaten by his men, and on the last occasion in June 2020 after a particularly bad beating by them with wooden sticks, and after he was given a last warning by his creditor that next time he would be killed if he still failed to repay his loan, the Applicant decided to leave Vietnam to save his life, and so on 30 June 2020 he departed for China, and from there he again sneaked into Hong Kong and raised another non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 14 January 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 18 February 2021 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”).

6.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 his men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention on the part of his creditor to seriously harm or kill him other than to put pressure on him to repay his loan, that in any event 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 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.

7.On 1 March 2021 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 19 July 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 25 August 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s claim suspicious in the absence of any reliable evidence such as loan agreement to corroborate his bare assertions and given the fact that he was then without any job or income or any assets as security for his loan that it doubted that any money lender would be willing to lend such a large loan to the Applicant, and that in any event it was a private monetary dispute between them without any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam to negate such risk that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 23 September 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 merely repeated his claim as before that he cannot return to Vietnam where his life would be in danger but without putting forth any proper ground 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.

10.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.

11.In the Applicant’s case, the fact is that it has been established by the Director in the decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also confirmed by the Board, 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 23^rd day of December 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