Case Document

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HCAL 880/2020

[2024] HKCFI 1737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 880 OF 2020

BETWEEN
	Vu Van Tung	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 41-year-old national of Vietnam who had on previous occasions entered Hong Kong illegally to look for employment and for which he was arrested, convicted and sentenced to prison for various terms ranging from 18 months to 35 months before his inevitable repatriation to Vietnam, and in November 2018 he again sneaked into Hong Kong and was arrested by police on 27 November 2018, for which he was subsequently convicted and sentenced to another prison term of 21 months, during which he raised a non-refoulement claim for protection to the Immigration Department on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts and/or prosecuted for possession of Chinese goods contrary to the government policies at the time.

2.The Applicant was born and raised in Lach Chay, Dong Tam, Quan Le Chen, Hai Phong, Vietnam. After leaving school he got married, and worked as a labourer in his home district to make his living.

3.Between 1989 and 2010 he had on various occasions sneaked into Hong Kong to look for employment, and for which he had been convicted and sentenced to prison for various terms ranging from 18 months to 35 months before repatriation to Vietnam.

4.Upon his last repatriation in 2010, the Applicant returned to his home district in Hai Phong, and in September 2014 he started a trading business importing garments and electronic goods from China for sale in his shop in his home district with the help of a loan from a local money-lender with monthly interest payments until full repayment of the loan.

5.Initially he managed to make his monthly interest payments and part repayment of his loan from his business income, but in 2015 due to territory dispute between Vietnam and China that the Vietnamese government changed its policies by prohibiting importing goods from China, and for which the Applicant was arrested in April 2015 for possession of Chinese goods, and was detained by police for interrogations overnight during which he was beaten by some police officers by punching and kicking all over his body, and was only released on the next day after he had signed a confession statement.

6.Upon returning home and no longer had his business, the Applicant started to default with his loan repayments, and so his creditor sent men to threaten and beat him, and on the last occasion they threatened that if next time he still failed to repay his loan, they would kill him.

7.As a result the Applicant became fearful for his life and fled from his home into hiding, and one day in November 2018 he went to Mong Cai and departed Vietnam for China, and from there he again sneaked into Hong Kong, and upon his arrest by the police and subsequent conviction and imprisonment for 21 months, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 19 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 25 September 2019 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”).

9.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 or the authorities 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 his creditor to seriously harm or kill him other than to press him to repay his debts, while there is no reliable evidence that there is still any adverse interest of the police or the authorities in him given that there were no further actions against him upon his release and that he was able to depart the country without problem, that in any event if he were to be prosecuted by the authorities it would be according to the law in place and for which he would be regarded as a fugitive of the law and hence not entitled to non-refoulement protection, while his problem with his creditor 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 97 million people spread across a vast territory of more than 330,000 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.

10.On 10 October 2019 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 7 April 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 24 April 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found material inconsistencies, discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his creditor or the authorities that caused him to leave his country to come to Hong Kong to seek protection, that the credibility of his claim was further undermined by his failure to raise it upon first arriving in Hong Kong until after his arrest and subsequent imprisonment, and that in any event there is no reliable evidence of any adverse interest of the Vietnamese authorities in him, while his problem with his creditor was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon his return to Vietnam that his claim for non-refoulement protection failed on all applicable grounds.

12.On 12 May 2020 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, and in his supporting affirmation of the same date he just stated that he does not agree with the decision as his life would still be in danger in his home country but without putting forth 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 97 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.

15.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, a decision also agreed and 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.

16.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.

17.Moreover, the Applicant recently on 14 June 2024 in writing requested to withdraw his application as his problem in his home country has been resolved that it is now safe for him to return to Vietnam.

18.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 9^th day of July 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 9 July 2024 Vu Van Tung 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 9 July 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 16378/19/10/27/V2357 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 655/19 (Formerly RBCZ 10467/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)