Mac the Luc v. Torture Claims Appeal Board

HCAL 1500/2021

[2021] HKCFI 3908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1500 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 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 22-year-old national of Vietnam who entered Hong Kong illegally in August 2020 and was arrested by police on 12 August 2020. After he was referred to the Immigration Department for investigation, 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 Thon Duong Xuan, Xa Lai Xuan, Huyen Thuy Nguyen, Hai Phong City, Vietnam.  After leaving school he assisted his parents in their farming in his home village.

3.In July 2019 for his gambling habit the Applicant borrowed a loan from a local loan shark repayable within 3 months and with interest payable every month, but by September 2019 when he was unable to repay his loan, he was threatened by men sent by the loan shark, and after an occasion when he was chopped by those men with knives and suffered a serious head injury which required hospitalization for 2 weeks, he became fearful for his life, and upon his discharge form the hospital, he fled from his home and on 2 August 2020 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 11 May 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

4.While being released on recognizance pending determination of his claim, the Applicant was again arrested by police on 2 separate occasions for theft for which he was subsequently convicted and sentenced to prison for 2 months and 9 weeks respectively.       

5.By a Notice of Decision dated 29 June 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 or his 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 or kill him other than to put pressure on him to repay his debts, 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 100 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 young 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.The Applicant then 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 12 October 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 October 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found significant discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim in the absence of any reliable or documentary evidence to corroborate his bare assertions, and that in any event 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 from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

9.On 29 October 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for his intended challenge:

(1) that the Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim and that they were not reasonable or fair as required by the Wednesbury test as his right to life must be protected by the criminal law from extra-judicial killings that he may face if deported back to his home country;

(2) that the Director failed to appreciate or give the proper importance or weight to the presence of state acquiescence in his case which had led to an unfair outcome of rejecting his non-refoulement claim as the applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4) that the Director failed to consider or give sufficient weight to the COI which supported the Applicant’s case that the police in his home country would not be able to protect and ruled otherwise which is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(5) that the Director failed to attain high standard of fairness in failing to consider the fact that corruption and incompetency of the police and the administration in the Applicant’s home country which various human rights organizations have complied reports that stated testament to the Applicant’s assertions that the Director’s decision should be considered unreasonable in the scope of public law;

(6) that the Adjudicator was procedurally improper and unfair when assessing whether to accept explanation provided by the Applicant and unreasonably required him to respond to questions which he was not in a position to offer any response;

(7) that the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country making persecution effectively persecution by the state; and

(8) that the Adjudicator’s decision to dismiss the Applicant’s appeal based on findings which it ought to allow the appeal and hence the decision is irrational.  

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in their assessment of his claim, or in what way would the concept of state acquiescence or extra-judicial killing be relevant to his case which was even on his own case at the highest a private localized monetary claim between him and his creditor without any official or state involvement. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as he also failed to attend the hearing of his application without any explanation, I do not find any of them reasonably arguable 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 both the Director and the Board in their respective decisions 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, 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 30^th 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