Nguyen Van Giap v. Torture Claims Appeal Board

HCAL 1532/2019

[2022] HKCFI 107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1532 of 2019

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:

1.  the application for leave to apply for Judicial Review be reinstated; and

2.  leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Vietnam who last entered Hong Kong illegally in August 2014 and was arrested by police on 12 April 2015. 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 Hai Phong City, Vietnam. After leaving school he worked as a farmer and later operated his own garments business in his home district.

3.In 2012 his father was seriously sick and in order to pay for the resultant medical expenses, the Applicant borrowed a loan from a local loan shark to be repaid within one year and with monthly interest payments.

4.Initially the Applicant was able to make the monthly interest payments from his business income, but when his business turned bad in 2013, he started to have difficulties with his loan repayments, his creditor therefore sent his men to threaten him, and after one occasion when he was beaten with wooden sticks, the Applicant became fearful for his life, and so in mid-2013 he departed Vietnam for China, and from there he sneaked into Hong Kong, but was subsequently arrested by police and was repatriated to Vietnam in September 2013.    

5.Upon his return to his home district, he realized that his creditor was still looking for him, and so in October 2013 he again departed Vietnam for China, and from there he sneaked into Hong Kong again, and upon his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).           

6.By a Notice of Decision dated 31 May 2017 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 his men upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that his problem with his creditor 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 94 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.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 January 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 20 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found major inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim, and that in any event if his problem with his creditor is true that 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 as well as reasonable internal relocation for him to safely move to other area away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds.

10.On 4 June 2019 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 of fear of being killed by his creditor over his outstanding debts without putting forth any proper ground for his intended challenge.

11.Before his application could be dealt with by the Court, the Applicant on 6 January 2020 filed an affirmation requesting to retract his application, which was subsequently treated by the Court as withdrawn without determination.

12.However, on 20 October 2021 the Applicant issued a summons requesting to re-open his application, and at the hearing of his summons he explained that in 2020 he applied to withdraw his application because he was told by his father that he would sell his property to help him to repay his debts to his creditor, and hence he thought it would be safe for him to return to Vietnam, but as he was unable to get on any flight due to the Covid-19 pandemic, and that recently he heard that his father had spent all the money without repaying his debts and that his creditor is still looking for him everywhere, he therefore decided that he cannot return to Vietnam and would like to re-open his leave application.

13.The Applicant did not produce any evidence to corroborate his assertions, but as I was unable to say with any certainty that what he had asserted could not have happened, and as the merits of his application had never been formally determined, I therefore gave him the benefit of the doubt and reinstated his leave application for determination, but as noted above, the Applicant did not put forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his summons. As such and in the absence of any error of law or irrationality or procedural unfairness in his process for 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.    

14.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.

15.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 29 – 49 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.  

16.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 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.                

17.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.

18.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 6th day of January 2022.

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