Nguyen Van Lan v. Torture Claims Appeal Board

HCAL 1476/2019

[2023] HKCFI 2305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1476 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of Vietnam who arrived in Hong Kong on 28 September 2015 as a visitor with permission to remain up to 5 October 2015 when he did not depart and instead overstayed, and on 6 October 2015 he surrendered to the Immigration Department 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.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Thon Lac Hoai Song Ho, Thuan Thanh, Bac Ninh, Vietnam. After leaving school he went to work in Taiwan making metal doors before returning to Vietnam in 2009 to do general metal work. In 2010 he again left Vietnam to work in Japan in food production business until 2014 when he returned to his home in Vietnam.

3.In December 2014 he started his own metal work business by borrowing a loan from a local money-lender repayable within 6 months and with monthly interest payments.  However, his business failed after 6 months, and when he was unable to repay his loan, he was beaten by his creditor and his men, and was threatened that if he still failed to repay his loan, he would be killed as well as his wife and children.

4.Fearing for his life, the Applicant on 28 September 2015 departed Vietnam for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 April 2018 and attended screening interview before an immigration officer with legal representation.

5.By a Notice of Decision dated 26 April 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”).

6.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 other than to press him to repay his loan and that despite threats were also made against his wife and children that they are still residing in his home district without incidents, that in any event it was a private monetary dispute between the Applicant and his creditor only 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 Hanoi and Ho Chi Minh City where it would be difficult if not impossible for his creditor to locate him.

7.On 7 May 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 26 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 10 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from his creditor over his outstanding debts but found no evidence of any real intention of his creditor to seriously harm or kill him or his family other than to press him for repayment of his loan due to the low intensity and frequency of past ill-treatment from them, and that in any event it was a private monetary dispute between the Applicant and his creditor without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam to negate any risk of harm from his creditor that his claim for non-refoulement protection failed on all applicable grounds.

9.On 30 May 2019 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and put forth the following grounds for his intended challenge:

(1)  That the Adjudicator failed to apprehend clearly the perimeters, guiding principles and the laws and decided court cases of the relevant human rights Conventions for his application for non-refoulement protection;

(2)  That the Adjudicator failed rationally or reasonably to:

(a)  achieve one or more of the legitimate aims recognized by those Conventions,

(b)  consider all applicable grounds of his non-refoulement protection to a high standard of fairness,

(c)  give sufficient analysis and consideration of his claim and all the relevant considerations including the relevant COI,

(d)  make a fair and balance findings of his credibility, and

(e)  assess and consider properly the merits of his claim;

(3)  That the Adjudicator failed to accept that, if the Applicant is returned to his home country, there is a genuine and personal risk that:

(a)  his life would be arbitrarily deprived and his absolute and non-derogable right under BOR 2 would be violated,

(b)  he would be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

(4)  That the Adjudicator erroneously rejected the Applicant’s claim based only on the physical ill-treatment of himself but failed to give weight to the attack against the Applicant’s wife and her injuries sustained or to consider the Applicant’s mental ill-treatment that his absolute and non-derogable right under BOR 3 would be violated if the Applicant is returned to his home country;

(5)  That the Adjudicator failed to accept that the Applicant has a well-founded fear of him being persecuted;

(6)  That the Adjudicator failed to give:

(a)  due considerations and weight to the articles and materials about the COI of his home country;

(b)  a liberal interpretation of the phrase “a particular social group” which should have meant and included the prevalent serious situation of a particular large group of debtors being persecuted by loan sharks in his home country and thereby finding the Applicant a member of that group;

(7)  That the Adjudicator erred in not finding the Applicant’s severe mental pain and suffering from the creditor’s attack on his wife and his threats of killing him as within the definition of “torture”;

(8)  That the Adjudicator failed to give due considerations and weight to the articles and materials about the COI of his home country and failed to properly draw an inference from the Applicant’s case that the Vietnamese police was bribed by his creditor and was consenting or acquiescing the Applicant’s suffering inflicted by his creditor.

10.These grounds are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without the necessary or relevant 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, and given the fact that the Board never took issue with his claim of fear of harm from his creditor over his debts and its correct finding that whatever risk arising from what was essentially a private monetary dispute between them on the factual basis even on the Applicant’s own case without any official involvement that it will be negated by state/police protection available to him upon his return to his home country, and upon being satisfied that the Board did properly assess his claim with sufficient and proper enquiries into relevant COI and with the benefit of hearing him in oral evidence and his answers raised of his claim, I do not find any of these grounds or complaints of the Applicant reasonably arguable 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.Furthermore, the fact is that it has also been correctly established by the Director in his 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, a decision also confirmed by the Board, 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.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 11^th day of September 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