Hoang Dinh Quan v. Torture Claims Appeal Board

HCAL 2304/2019

[2023] HKCFI 1606

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2304 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 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 29-year-old national of Vietnam who together with his wife entered Hong Kong illegally on 28 February 2016 and surrendered to the Immigration Department on 1 March 2016 when they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by their creditors over their unpaid debts. They were subsequently released on recognizance pending the determination of their claim.

2.The Applicant was born and raised in Hai Phong, Vietnam. After leaving school he worked in various jobs including in the factory, married his wife in 2013 and raised their family in his home district.

3.Later in the same year they started their own fish farm business by borrowing separate loans from 2 local money-lenders with interest charged on the loans payable every month until their full settlement.

4.Initially they managed to make their monthly interest payments to their creditors without problem, but by June 2014 their business turned bad and was eventually closed down in August 2014, and when they defaulted with their payments, their creditors started to send their men to threaten both of them.

5.After several occasions of being severely beaten by those men when wooden sticks when both of them suffered cuts and bruises all over their body, the Applicant and his wife in late 2015 fled from their home to hide in his aunt’s place in another town, and on 26 February 2016 they departed Vietnam for China, and from there they later sneaked into Hong Kong and subsequently raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form (“NCF”) on 3 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 24 March 2017 the Director of Immigration (“Director”) rejected the claims of the Applicant and his wife on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their 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 claims of the Applicant and his wife and assessed the level of risk of harm from their creditors upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of either of their creditors to seriously harm or kill them other than to press them for repayments of their loans, that in any event these were private monetary disputes between them without any official involvement that state or police protection would be available to the Applicant and his wife 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 and his wife as able-bodied adults with working experience to move to other part of the country away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for their creditors to locate them.

8.On 31 March 2017 the Applicant and his wife jointly lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but upon his wife subsequently withdrawing her appeal, only the Applicant’s appeal was dealt with by the Board and for which he attended an oral hearing on 25 June 2019 during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm of his creditors for leaving his home country to come to Hong Kong, and that in any event they were private monetary disputes between him and his creditors 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 areas of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 12 August 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 or in his supporting affirmation of the same date in which he just repeated his claim as before that his life is still in danger of being harmed or killed by his creditors if refouled to his home country 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.

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.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 on 24 April 2023 wrote to the Court requesting to withdraw his application as it is now safe for him to return to his home country, and that he fully understood the consequences of his action.

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 16^th day of June 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