Hoang Dinh Binh v. Torture Claims Appeal Board

HCAL 41/2022

[2023] HKCFI 1452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 41 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 / 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 49-year-old national of Vietnam who had previously entered Hong Kong illegally on 20 July 2015 and 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 upon his claim being rejected by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”) on all the applicable grounds, and upon his confirmation that his wife was able to resolve his monetary dispute with his creditor in Vietnam, the Applicant was voluntarily repatriated to Vietnam on 17 July 2019.

2.Less than one year later on 15 June 2020 the Applicant again entered Hong Kong illegally, and upon his subsequent arrest by the police and was referred to the Immigration Department for investigation, he requested to make a subsequent claim on the basis that if he returned to Vietnam he would be harmed or killed by the same creditor over another loan which he again failed to repay, and upon allowing his request the Director proceeded to determine his subsequent claim again on all the applicable grounds, and pending which the Applicant was released on recognizance.

Previous Claim

3.The Applicant was born and raised in Hai Phong, Vietnam. After leaving school he worked as a fisherman, got married and raised a family with 2 children in his home district, and later started his own seafood business.

4.In 2014 he borrowed a loan from a local money-lender for his business expenses, but due to poor business in June 2015 he defaulted with his loan repayments, and after receiving death threats from his creditor and followers, the Applicant on 16 July 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”) and attended a screening interview before an immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 2 June 2017 the 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 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 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.

7.On 12 June 2017 the Applicant lodged an appeal to the Board against the Director’s decision, and for which he attended an oral hearing on 27 December 2018 before the Board during which he gave further evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision, and one month later on 17 July 2019 the Applicant was voluntarily repatriated to Vietnam after confirming that his wife had resolved his monetary dispute with his creditor in Vietnam.

Subsequent Claim

8.Upon returning to his home district in Vietnam, the Applicant borrowed another loan from the same creditor to meet his living expenses, but as he was unable to find any job, he soon defaulted with his loan repayments, and after his creditor had sent men to threaten him, the Applicant on 25 August 2019 again departed Vietnam for China, and from there he later again sneaked into Hong Kong on 15 June 2020, and was arrested by police 3 weeks later on 5 July 2020.

9.After he was referred to the Immigration Department for investigation, the Applicant on 10 September 2020 raised another claim for non-refoulement protection on similar basis that he would be harmed or killed by the same creditor over his failure to repay another loan if refouled to his home country, of which the Director treated as his request to make a subsequent claim, and for reason unclear the immigration officer allowed his request and proceeded to assess and determine his subsequent claim under Section 37ZP of the Immigration Ordinance on all the applicable grounds, for which the Applicant again completed a NCF on 8 June 2021 and attended another screening interview before the immigration officer with legal representation from DLS.

10.By a Notice of Decision dated 13 July 2021 the Director again rejected the Applicant’s subsequent claim upon arriving at the same findings and conclusion as in his previous claim that his problem with the same creditor was a private monetary dispute 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 within the country that it would not be unduly harsh for him to move away from his home district to other large cities where there would not be any risk of being located by his creditor.

11.The Applicant’s subsequent appeal to the Board against the Director’s decision was also dismissed on 30 December 2021 after hearing him in evidence on 30 November 2021 and upon finding his claim of being able to borrow another loan from the same creditor despite what happened in the past with his default of his previous loan and that he was without any security or job or income to repay the new loan simply incredible and implausible, and that even if such claim were true that it was similarly a private monetary dispute between just the Applicant and his creditor without any official involvement that again state/police protection would be available to the Applicant as well as reasonable internal relocation for him to move to other part of the country without any risk of being located by his creditor that his claim for non-refoulement protection again failed on all the applicable grounds.

12.On 11 January 2022 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision 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.

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 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 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.Furthermore, the Applicant recently on 30 March 2023 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

17.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 Vietnam, I accordingly dismiss his leave application.

Dated the 31^st 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