Nguyen Van Diep v. Torture Claims Appeal Board

HCAL 600/2019

[2022] HKCFI 2760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 600 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 25-year-old national of Vietnam who entered Hong Kong illegally on 22 March 2016 and surrendered to the Immigration Department on 5 April 2016 when he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his parents’ creditor over their outstanding debts after they had disappeared without settling them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Do Son District, Hai Phong City, Vietnam. After leaving school he worked as a barber apprentice, and continued to reside with his parents who ran a fish farm business in which the Applicant was never involved.

3.However, in 2015 his parents’ fish farm was closed down after a storm had wiped out all the stocks, and one day in early 2016 while his parents were out of the house, some men came to the Applicant’s home claiming to be sent by his parents’ creditor looking for them for settlement of their loan, and when they were informed by the Applicant that his parents were not in the house, those men then threatened that if the loan was not repaid within one month, they would be killed.

4.After being informed by the Applicant of the threats from their creditor, his parents left the country to take shelter in China, and when those men were unable to find them, they then turned their threats against the Applicant, demanding him to repay his parents’ debts, and when he was unable to do so, they then beat him with punches and kicks, and warned that next time they would kill him if he still failed to do so.

5.As he also became fearful for his life, the Applicant in March 2016 departed Vietnam for China, and from there he later sneaked into Hong Kong, and upon surrendering to the Immigration Department, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 August 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 19 August 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 parents’ 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 them to seriously harm or kill him other than to put pressure on him to repay his parents’ debts, that in any event it was a private monetary dispute between his parents and their creditor 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 young man with working experience to move to other part of the country away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for anyone to locate him.

8.Meanwhile on 3 July 2017 the Director in his own initiative by a letter to the Applicant invited him to submit any additional facts which may be relevant to his claim on all applicable grounds including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2”), and in the absence of any response from the Applicant, the Director by a Notice of Further Decision dated 18 July 2017 rejected his BOR 2 claim upon finding that the facts of his case did not engage the BOR 2 ground, and that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including his right to life under BOR 2 Risk being violated upon his return to Vietnam.

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 1 September 2016, and for which he attended an oral hearing on 18 January 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 February 2019 his appeal was dismissed by the Board which also confirmed both decisions of the Director.

10.In its decision the Board accepted the Applicant’s evidence regarding his parents’ debts and the threats from their creditor and followers against him after they were unable to locate his parents over their outstanding debts, but found no evidence of any real intention of them to seriously harm or kill him over his parents’ debts, and that in any event it was a private monetary dispute between his parents and their creditor without any official involvement that state/police protection would be available to the Applicant upon his return to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.

11.On 4 March 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 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.Furthermore, the fact is that it has also been established by the Director in his decisions 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.

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 8^th day of September 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