Pham Ngoc Anh v. Torture Claims Appeal Board

HCAL 2897/2019

[2023] HKCFI 1738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2897 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 34-year-old national of Vietnam who entered Hong Kong illegally on 26 April 2017 and was arrested by police on 3 May 2017. 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 unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in San Xuat Hamlet, Ngoc Hai Ward, Do Son District, Hai Phong City, Vietnam. After leaving school he worked as a carpenter in his home district to make his living.

3.In 2017 the Applicant together with a friend formed their own carpentry business by borrowing a loan from a local money-lender to be repaid within 6 months plus interest, and all of which the Applicant gave to his partner for purchasing stocks for their business.

4.However, one week later his partner just disappeared with all the money, and as a result the Applicant had to close down the business and returned to work as a carpenter, but when he was unable to repay his loan, his creditor in April 2017 started to come with his men to threaten and beat him.

5.After being beaten twice by those men that the Applicant suffered cuts and bruises all over his body, and when his creditor threatened to kill him next time if he still failed to repay his loan, the Applicant fled to Mong Cai, and on 24 April 2017 he departed Vietnam for China, and from there he later sneaked into Hong Kong, and after he was arrested by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 15 January 2018 with legal representation but failed to attend any screening interview before an immigration officer due to alleged medical reasons. Instead, he provided information and submitted answers in writing to the Director’s List of Questions on 28 February 2018.

6.By a Notice of Decision dated 2 March 2018 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 found no substantial grounds for believing that he would be harmed or killed by his creditor and followers upon his return to Vietnam 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, 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 96 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 areas 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 15 March 2018 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 6 September 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 September 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies and implausibility in the Applicant’s evidence that it doubted his claim of fear of harm from his creditor that caused him to leave his country to come to Hong Kong, and that in any event if such risk were real that it arose form a private monetary dispute between the Applicant and his creditor without any official involvement that state/police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to move safely to other areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 2 October 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 stated that he does not agree with 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.

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 if real 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 has recently filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country and which he would like to do as soon as possible.

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 now safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 5^th day of July 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