LE HUU DAI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 300/2021 [2021] HKCFI 1802 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 300 of 2021 BETWEEN Le Huu Dai 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 (counsel for) 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: The Applicant is a 38-year-old national of Vietnam who entered Hong Kong illegally on 4 May 2019 and was arrested by police on 10 May 2019. 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 for failing to repay his loan. He was subsequently released on recognizance pending the determination of his claim. The Applicant was born and raised in Haiphong City, Vietnam. After leaving school he worked as a construction worker and then as a farmer in his home village. In March 2018 he started a livestock farm by borrowing a loan from a local money-lender repayable within one year and with monthly interest payments. However, soon half of his livestock had died from a plague, and he started to have difficulty making his monthly interest payments, and after his creditor had sent men to beat him up, the Applicant became fearful for his life, and so he fled to Mong Cai, and when he later heard that his creditor was looking for him everywhere, he therefore departed Vietnam on 29 April 2019 for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 July 2019 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 26 August 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”). In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditor and followers upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that 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”) shows 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 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 parts of Vietnam 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. On 30 August 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled hearing on 9 June 2020 before the Board without explanation, and the Board therefore proceeded to deal with his appeal in his absence and on paper. On 22 January 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board found inconsistencies and implausibility in the Applicant’s claim but of which he failed to attend his hearing to clarify or explain which casted doubt on the credibility of his claim, and that in any event in the absence of any official involvement that state or police protection would be available to him upon his return to Vietnam as well as reasonable internal relocation for him to safely move to other areas away from his home district without any risk of being located by his creditor that his claim for non-refoulement protection failed on all applicable grounds. 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, and in his supporting affirmation of the same date he merely repeated his claim that he cannot return to his home country as his life would still be in danger and that the decision was unfair and unjust but without putting forward any proper ground for his intended challenge, nor did he request any 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. 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. 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 is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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. 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. 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 23rd day of June 2021 (MAK Sze-ki) 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 his 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 23rd June 2021 Le Huu Dai 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 23rd June 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 16244/19/8/106/V2342 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 532/19 (formerly RBCZ 124/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1