Bui Van Phuc v. Torture Claims Appeal Board

HCAL 1147/2024

[2024] HKCFI 3030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1147 OF 2024

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Vietnam who entered Hong Kong illegally in December 2014 and was arrested by police on 2 January 2015 for possession of a forged identity card and was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim to the Immigration Department for protection on the basis that if he returned to Vietnam he would be harmed or killed by his parents’ creditor over their debts.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Hai Phong, Vietnam.  After leaving school he worked as a general labourer in his home district to make his living.

3.In 1993 his parents started their own farming business with the help of a loan borrowed from a local loan shark repayable by monthly instalments with interests from their business income, but later when they lost their business and were unable to repay their loan, the loan shark and his gang then threatened the Applicant to settle his parents’ debts by smuggling cigarettes for them, and for which the Applicant was subsequently arrested by police and was sent to prison for 5 years.  

4.After his discharge from prison in 2011 the Applicant was again threatened by those gangsters to undertake smuggling activities for them, and to avoid their threats the Applicant on 2 October 2014 departed Vietnam for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 5 May 2016 and a Notice of Further Decision dated 10 March 2017 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 decisions 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 loan shark and his gang 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 them to seriously harm or kill him, that in any event it was a private monetary dispute between them 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 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 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 anyone to locate him.

7.On 23 May 2016 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 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 25 April 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.Subsequently upon obtaining leave from this Court to apply for judicial review of the Board’s decision, a consent order was issued by the Court on 3 January 2024 to quash the Board’s decision, and that the Applicant’s appeal was remitted back to a differently constituted Board for fresh determination, and for which the Applicant attended another oral hearing on 20 June 2024 before a different Adjudicator, during which he again gave evidence for his claim and answered questions raised of his claim by the Adjudicator.  

9.By a decision dated 3 July 2024 the Board dismissed the Applicant’s appeal upon finding material inconsistencies and discrepancies in his evidence that it doubted the credibility of his claim of fear of harm from the loan shark and his gang that caused him to leave his country to come to Hong Kong to seek protection, that even if his account were true that there was no reliable evidence of any real intention of the loan shark or his gang to seriously harm or kill him, and that it was a private monetary dispute between them 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 alternatives for him to move safely to other parts 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 17 July 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board reached the decision wrongly in assessing his non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that his life must be protected by the criminal law from the killings that he may face if deported back to his home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in his case which led to an unfair outcome of rejecting his claim without realizing that he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing his claim;

(4) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required him to respond to questions that he was not in a position to offer any response;

(7) That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.           

11.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any 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, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence to the Applicant’s case when on the factual basis of even his own case that it was a private monetary dispute between him and the loan shark and his gang only without any official involvement or political element at all.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant either in his application or at the hearing before the Court, I do not find any of them reasonably arguable for his intended challenge.

12.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.

13.In the Applicant’s case, the fact is that it has been correctly established by the Director in his 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, 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.                

14.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.

15.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

Dated the 5^th day of November 2024

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