Dong Hoang Anh v. Torture Claims Appeal Board

HCAL 848/2022

[2023] HKCFI 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 848 of 2022

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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 23-year-old national of Vietnam who entered Hong Kong illegally on 19 October 2020 and was arrested by police on 24 November 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 and associates over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Phuc Xa, Kien Thuy, Hai Phong, Vietnam. After leaving school he worked as a casual worker in his home district.

3.In 2018 when he was at the age of 19, the Applicant borrowed a loan of one billion Vietnamese Dong from a local money-lender to start his own business to import spices including the expensive saffron from Malaysia to supply the local restaurants in Vietnam. For the loan there was no repayment deadline but the Applicant was required to make monthly payments of the interest charged on his loan to his creditor.

4.For his business the Applicant regularly travelled to Malaysia to meet with his Iranian supplier for the import of spices and saffron, but in early 2020 his business failed during the coronavirus pandemic, and by July 2020 when he was unable to make his monthly interest payments, his creditor came with his men to threaten the Applicant that he would be killed if he failed to repay his loan within one month.

5.Thereafter the Applicant became fearful for his life and fled to Hanoi, and on 15 October 2020 he departed Vietnam for China, 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 3 August 2021 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 August 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”).

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 associates 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 or reasons for his creditor to have any real intention to seriously harm or kill the Applicant other than to press him for repayment of his loan, that in any even tit was a private monetary dispute between them without any state or 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 101 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 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 his creditor to locate him.

8.On 6 September 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing for his appeal without any explanation, and that the Board proceeded to deal with his appeal in his absence and on papers. On 23 June 2022 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found in the absence of any oral evidence from the Applicant but on the basis of the materials and information provided by him earlier to the Director and available in the hearing bundle before the Board that it was incredible and implausible that the Applicant in 2018 at the young age of 19 without any prior experience in spices and saffron business or any connection with the local restaurants that he could embark on his alleged spices import business or that he could obtain such a large loan of one billion Vietnamese Dong which is the equivalent of HK$343,000 from a money-lender without any collateral or security for the loan or any proof or indication of being able to make repayment that his claimed fear of harm from his creditor for departing his country for Hong Kong was based on unreliable and incredible evidence that he had failed to establish that he will face any risk of harm or ill-treatment if refouled to Vietnam, and that in any event even if such risk is real that it arose from a private monetary dispute between him and his creditor without any state or official involvement that state/police protection would be available to negate any such risk as well as reasonable internal relocation for him to move safely to other part of the country 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 30 August 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Board’s decision to refuse the Applicant’s claim is wrong;

(2)  That the Board in suggesting that the Applicant could relocate to other part of his home country to avoid his creditor failed to properly recognize and consider his many difficulties and obstacles that he would have to face in a new location, and as his health is not good and that he is not an active person which would disadvantage him in the labour market that he would not be able to adapt to the new location or to find a job to support himself that such suggestion is simply not feasible;

(3)  That the Board failed to recognize or consider that gangsters in his home country have clandestine connection with the police and government that it is quite possible for his creditor to locate him in his new location that it is simply not practical for the Applicant to relocate safely to anywhere of his home country to avoid his creditor;

(4)  That the decision of the Board is clearly unsafe and that it is wrong for the Board to rule that the Applicant as unreliable.

11.These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case, or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of the facts and relevant information in its assessment and determination of the availability of reasonable internal relocation to the Applicant to move safely to other part of his home country based on the facts of his own case on the materials available before the Board but which he failed to advance for his appeal when he failed to attend the scheduled oral hearing before the Board without any explanation and which he also failed to provide in his present application or at the hearing now before the Court. As such and as none of these assertions were properly and relevantly elaborated or presented with any necessary particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 64 – 81 of its decision in the absence of any oral evidence from the Applicant who failed to attend the scheduled oral hearing for his appeal without any explanation or to clearly and properly identify any error of law or procedural unfairness in his process before the Board or in its decision in this application now before me, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

14.Furthermore, the fact is that it has also 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.

15.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.

16.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 20^th day of April 2023

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