Case Document

100%Judiciary

HCAL 40/2022

[2022] HKCFI 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 40 of 2022

BETWEEN

	Tu Van Minh	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 (counsel for) the Applicant in open court / 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 35-year-old national of Vietnam who entered Hong Kong illegally on 12 October 2020 and was arrested by police on 16 October 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 unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Khe Hoi Thuong Tin, Ha Noi, Vietnam. After leaving school he worked as a farmer, got married and raised a family with 2 children in his home village.

3.In 2019 he and a friend started a restaurant business in Ha Noi by borrowing a loan from a local money lender repayable within one year and with monthly interest payments.

4.However, in August 2020 his business partner stole all the money from the restaurant and left the country, and as a result the Applicant had to close down the restaurant, and when he was unable to repay his loan, his creditor sent men to beat him up and also to threaten his family.

5.As he became fearful for his life, the Applicant therefore departed Vietnam for China on 26 September 2020, 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 2 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While being released on recognizance pending determination of his claim, the Applicant was again arrested by police on 27 November 2020 for theft, for which he was subsequently convicted and sentenced to prison for 2 months.

7.By a Notice of Decision dated 23 September 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”).

8.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 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 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 Ming City where it would be difficult if not impossible for to his creditor locate him.

9.On 20 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 20 December 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 December 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor and followers over his outstanding debts, but found no evidence of any real intention of his creditor to seriously harm or kill him, and 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 move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.On 11 January 2022 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 and that he does not agree with the Board’s decision but without putting forth any proper grounds for his intended challenge, nor did he request any oral hearing for 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.

12.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.

13.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.

14.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.

15.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 15^th day of February 2022.

(K.H. LI)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 15 February 2022 Tu Van Minh Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15 February 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18993/21/10/119/V3133 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1219/21 (formerly RBCZ 252/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)