Phung Van San v. Torture Claims Appeal Board

HCAL 1968/2019

[2022] HKCFI 2867

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1968 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 60-year-old national of Vietnam and a repeated offender of multiple illegal entries into Hong Kong over the past 25 years, and on the last occasion when he again entered Hong Kong illegally on 22 October 2012 and was arrested by police on the following day, for which he was subsequently convicted and sentenced to prison for 2 years, and during which he raised a non-refoulement claim to the Immigration Department on the basis that if he returned to Vietnam he would be harmed, discriminated and/or persecuted by the Vietnamese authorities due to his family’s dispute with the government over land resumption of his family home and for repeatedly leaving the country illegally. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thon Nam Hai, Xa Doan Xa, Kien Thuy, Hai Phong, Vietnam where his family was given a piece of land by the government to build their home, and after leaving school he worked as a fisherman in his home district, and continued to live in his family’s house with his parents and siblings.

3.In 1987 he was involved in some protest activities against the government for which he was subsequently charged and served some imprisonment. Upon his release in 1988, he together with some fellow countrymen left Vietnam for Hong Kong as refugees, but in 1993 he voluntarily returned to Vietnam.

4.Upon returning to his home district, he felt being discriminated by the government and was treated like a traitor of the country for leaving the country illegally and was subject to frequent surveillance and harassments by the authorities, and had had difficulties finding employments, and so between 1997 and 2004 he left Vietnam for China to sneak into Hong Kong on some 5 occasions to look for jobs, during which he never raised any non-refoulement claim for protection after his subsequent arrests and before his inevitable repatriations to Vietnam.

5.Upon each of his return to Vietnam, the Applicant would be subjected to interrogations by the Vietnamese authorities over leaving the country illegally, of which he regarded as discriminations and harassments by the authorities against him.

6.In 2011 the land on which his family home situated was repossessed by the government for redevelopment, for which his family was given cash compensation but of which the Applicant was not satisfied and kept making complaints and disputes to the authorities, and after one occasion in October 2012 when he was arrested by the local authority over his protest and detained at the police station during which he claimed to have been beaten by the police, but was eventually released without charge.

7.Thereafter the Applicant did not feel safe to remain in Vietnam, and so on 19 October 2012 he again departed Vietnam for China, and from there he again sneaked into Hong Kong, and after his arrest by the police and was subsequently convicted and sentenced to prison, he raised a non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 17 January 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”).

9.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 the government and 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 of him being specifically targeted by the authorities over his land dispute or any previous activities, while his interrogations by the authorities every time after his repatriation from Hong Kong back to Vietnam were in accordance with the country’s lawful measures and public administrative regulations that would not entitle him to non-refoulement protection for persecution, as reliable and objective Country of Origin Information (“COI”) including UNHCR reports show no such persecutions, discriminations or harassments from the Vietnamese authorities against any returnees other than those who had engaged in political activities overseas who may face prosecutions but the Applicant had never been treated as such, that there was no evidence or reference to current government punishment of people who had previously sought asylum in Hong Kong as such repatriations were monitored under the UNHCR sponsored Comprehensive Plan of Action and Memorandum of Understanding between the UNHCR and Vietnam, and that reasonable internal relocation alternatives are available in Vietnam with a large population of 95 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 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 any local corrupt officials to locate him.

10.On 27 January 2017 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 12 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 June 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to his allegations of being harassed, discriminated and persecuted by the Vietnamese authorities over the past 25 years but without making any non-refoulement claim for protection during any of his previous entries into Hong Kong that it doubted the credibility of his claim of fear of such risk for fleeing his country for Hong Kong, and that relevant COI show no evidence of any such harassments discriminations or persecutions from the Vietnamese authorities to its returning citizens other than the necessary administrative enquiries and investigations for security reasons, nor is there any evidence that he had been so targeted over his previous land dispute with the government that his claim for non-refoulement protection failed on all applicable grounds.

12.On 12 July 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 just attached a copy of the decision but without putting forth 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.

13.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.

14.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 in 25 – 40 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.

15.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions 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.

16.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.

17.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 16^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