Nguyen the Toan v. Torture Claims Appeal Board

HCAL 367/2019

[2022] HKCFI 1233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 367 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 (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 55-year-old national of Vietnam who last entered Hong Kong illegally on 2 February 2015 and surrendered to the Immigration Department on 5 February 2015 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 over his unpaid debts and/or by the Vietnamese authorities for engaging in illegal mining activities in his home district. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Ha Long, Quang Ninh province, Vietnam.   After leaving school he worked in various jobs, got married and raised a family in his home district.

3.Between the years the Applicant had on 4 occasions illegally entered Hong Kong for which he was invariably arrested by police, convicted and sentenced to prison for the offense before being repatriated back to Vietnam.

4.Upon the last occasion of being deported back to his home country, the Applicant in 2004 started an unlicensed coal mining business in his home district, and for the purpose of expanding the business, he in 2011 and 2013 borrowed loans from a local money lender with monthly interests payable until discharge of the loans.

5.However, on 31 December 2014 a landslide accident occurred in the mine in which several workers were killed, and as a result the Applicant was forced to close down the mine and his business, and when he was unable to repay his loans as a result, his creditor started to send men to threaten him, and to avoid further threats and any possible investigation by the authorities over his unlicensed mining activities as well as any court actions by the families of the deceased workers for compensations, the Applicant fled to Mong Cai and in late January 2015 departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 27 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).            

6.By a Notice of Decision dated 10 November 2016 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 and/or the Vietnamese authorities upon his return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he was being pursued by the Vietnamese authorities over his unlicensed mining activities or the landslide incident or that he would be denied any due process or legal assistance over any such investigation as a result, that any problems with his creditor or the families of the deceased workers were private monetary 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 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 Mong Cai 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 10 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 December 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his unpaid debts or his concern over any investigation by the Vietnamese authorities over his unlicensed mining activities, but found 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 loans, or of any evidence that he would be denied any due process or legal assistance arising from any proper investigation by the Vietnamese authorities over his past mining activities, that his problems with his creditor or the families of the deceased workers were private monetary disputes 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 in large cities without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 11 February 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 that he fears of being harmed or killed by his creditor if refouled to his home country but without putting forward any proper ground 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.

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 from his creditor 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 28^th day of April 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