Nguyen Dinh Tuan v. Torture Claims Appeal Board

HCAL 1403/2021

[2021] HKCFI 3846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1403 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 49-year-old national of Vietnam who last entered Hong Kong illegally on 7 July 2020 and surrendered to the Immigration Department on 8 February 2021 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 and/or by the family of a drug dealer for giving evidence against the drug dealer in court. 

2.The Applicant was born and raised in Binh Duong Commune, Dong Trieu Town, Quang Ninh Province, Vietnam.  After leaving school he worked in various odd jobs such as casual worker, porter, hawker selling clothes and mobile phones, got married and raised a family with one child.

3.In 2014 he needed money for his garment business, and so he borrowed a loan from a local money lender repayable within 2 years with monthly interest payments, but after several months he had difficulties keeping up with his interest payments, and for which his creditor had made threats against him.

4.Later in December 2014, a friend asked him to buy drug for him, which led to the Applicant being arrested by police, and as a result the Applicant gave evidence in court against the drug dealer from whom he purchased the drug which led to the drug dealer being sent to prison for years, but when the drug dealer’s family swore to take revenge against him, the Applicant in June 2015 fled to China, and from there he sneaked into Hong Kong and raised a non-refoulement claim but which he later withdrew in January 2016 and was subsequently repatriated to Vietnam.     

5.Upon returning to his home district in Vietnam, the Applicant soon discovered that his creditor and the drug dealer’s family were still looking for him, and so he again fled to China, and later on 7 July 2020 he sneaked into Hong Kong, and 6 months later he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 25 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 19 April 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”).

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 creditor or the drug dealer’s family upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problems with them were private personal disputes 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 100 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 enemies to locate him.

8.On 11 June 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and while his appeal was several weeks out of time, the Board allowed its late filing and arranged for him to attend an oral hearing on 14 September 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 27 September 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence as to his claim vague and inconsistent that it doubted the credibility of his claim which was further undermined by his failure to raise his claim as soon as his arrival in Hong Kong until some 6 months later, and that in any event that his problems with his creditor and the drug dealer’s family were private personal disputes without any official involvement that state/police protection would be available to him upon his return to Vietnam to negate any risk that he may face that his claim for non-refoulement protection failed on all applicable grounds.     

10.On 7 October 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth one single ground for his intended challenge in that the Board reached its decision wrongly in assessing his non-refoulement claim as unfair and unreasonable as it failed to properly consider that the right to life under BOR 2 Risk must be protected by the criminal law from extra-judicial killings which he may face if deported to his home country but without providing any further details or particulars or elaboration as to how did the Board wrongly assess his claim or how would extra-judicial killings be relevant to his case, 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. 

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 fact is that it has been established by the Director in his 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, 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. 

13.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.

14.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