Case Document

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HCAL 301/2021

[2024] HKCFI 1630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 301 OF 2021

BETWEEN
	La Van Hieu	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 27-year-old national of Vietnam who entered Hong Kong illegally on 25 March 2019 and was arrested by immigration officers on 27 March 2019, and was subsequently convicted of the offences of illegal entry and undertaking unauthorized employment and was sentenced to prison for 15 months. Upon his discharge from prison and was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be subjected to torture and ill-treatment for escaping from prison upon his conviction by the Vietnamese Court Martial for disobeying his superior officers. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Huyen Tien Yen, Quang Ninh Province, Vietnam. After leaving school he joined the military service patrolling the borders.

3.One day in December 2018 while operating on a patrol boat and intercepting a Chinese fishing boat which had crossed into the Vietnamese territory, the Applicant refused to obey the order of his superior officer to fire his weapon at the fishing boat, and was subsequently arrested by the military police for disobeying order, during which his interrogation, he was beaten with wooden sticks that he suffered injuries all over his body and lost consciousness.

4.Later in March 2019 he was convicted by a Court Martial for insubordination, and was sentenced to prison for 10 years. As the Applicant felt that he was not given a fair trial, he started a hunger strike or protest in prison.

5.After 7 days of hunger protest he was taken to a hospital in Hai Phong City for examination, and while in hospital he managed to make his escape and fled to Mong Cai, and with the help of a friend he departed Vietnam on 24 March 2019 for China, and from there he later sneaked into Hong Kong and upon his subsequent arrest, conviction and imprisonment, he then raised his non-refoulement claim for protection to the Immigration Department, and for which he completed a Non-refoulement Claim Form (“NCF”) on 3 June 2020 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 29 June 2020 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 assessed the level of risk of harm from the Vietnamese authorities upon his return to Vietnam as low in the absence of any evidence that the Applicant had not been given a fair trial for the charge against him for disobeying order to which even in his own case that he had pleaded guilty and had had legal representation throughout his trial that it is not accepted that he had been unfairly treated and that he had been properly and fairly charged and convicted by the court under the military law and after a fair trial, and that his subsequent escape and left the country has made him a fugitive of the law not entitled to non-refoulement protection, and that reliable and objective Country of Origin Information (“COI”) show that upon his refoulement to Vietnam that he would still be entitled to due process under the current legal and judicial systems in Vietnam that it is not accepted that he will face his claimed risk of being harmed or tortured or ill-treated by the Vietnamese authorities as asserted in his claim.

8.On 9 July 2020 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 29 October 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 February 2021 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it rejected the credibility of his claim of having been convicted and sentenced to prison by a Court Martial for insubordination or of his subsequent escape from prison and Vietnam to come to Hong Kong for protection as unreliable and unsubstantiated, and hence it is not accepted that he would face any risk of being harmed or ill-treated by the Vietnamese authorities if refouled to his home country that his claim for non-refoulement protection failed on all applicable grounds.

10.On 8 March 2021 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 forth any proper ground for his intended challenge. 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 8 - 22 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.Furthermore, the fact that it has also been established by the Director in his decision that even if the Applicant’s claim of having been convicted and put in prison by the Court Martial for insubordination and his subsequent escape were true that it is not accepted that he will face the claimed risk of torture or ill-treatment by the Vietnamese authorities upon his refoulement to Vietnam, and that he will still be entitled to due process under the current legal and judicial systems in Vietnam in accordance with the relevant COI, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong.

14.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.

15.Moreover, the Applicant on 23 January 2024 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country.

16.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 20^th day of June 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20 June 2024 La Van Hieu Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20 June 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 17082/20/7/26/V2514 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 304/20 (Formerly RBCZ 10227/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)