Ngo Van Binh v. Torture Claims Appeal Board

HCAL 737/2022

[2023] HKCFI 1282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 737 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Vietnam who entered Hong Kong illegally on 13 February 2021 and was arrested by police on 26 February 2021. 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 outstanding debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thon Xuan La, Xa Thanh Son, Kien Thuy, Hai Phong, Vietnam. After leaving school he worked in various jobs including as a construction worker and apprentice chef, and in 2020 he started his own restaurant business by borrowing a loan from a local money-lender with monthly interest payments until discharge of the loan.

3.Initially the Applicant was able to make his monthly interest payments to his creditor from his restaurant income, but after the country was hit by the Covid-19 pandemic which badly affected his business that in May 2020 the Applicant started to default on his payments, and in June 2020 his creditor came with his followers to threaten him and his family, during which the Applicant would plead for more time to repay his loan, but when he was still unable to do so, his creditor and followers on one occasion in January 2021 beat him with wooden sticks that he suffered cuts and bruises all over his body and limbs.

4.After the assault the Applicant became fearful for his life and fled to Mong Cai. On 12 February 2021 he departed Vietnam for China, and from there he sneaked into Hong Kong, and after 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 20 October 2021 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 15 November 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”).

6.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 them to seriously harm or kill him other than to press him for repayment of 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 102 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 Da Nang where it would be difficult if not impossible for his creditor to locate him.

7.On 6 December 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find it necessary to hold any oral hearing and proceeded to deal with his appeal in his absence and on papers. On 1 August 2022 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his outstanding debts but found it was a private monetary dispute between the 2 of them without any official involvement that state or 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 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.

9.On 9 August 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision and complained that the decision is wrong and is unsafe in suggesting that he can relocate to other part of his home country to avoid the threats from his creditor, but that it is unfeasible for him to do so as his health is not good, that he will not be able to adapt to new places or to find a job to support himself, while his creditor can access the nationwide social network to find him in Vietnam. The Applicant did not request any oral hearing for his application.

10.However, the Applicant never raised any health issue or presented any such evidence to the Director or the Board, and on the basis of his relatively young age and his past working experience as well as the relevant COI, the Board was in my judgment perfectly entitled to make its finding on internal relocation as a viable option available to the Applicant to negate any risk from his creditor. 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 decision 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.

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.Furthermore, the Applicant recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 15^th day of May 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