Luu Thi Kim Thuy and Another v. Torture Claims Appeal Board

HCAL 2705/2018

[2020] HKCFI 2122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2705 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The Applicants are mother and son from Vietnam who respectively entered Hong Kong illegally in 2012 and 2014, and upon their surrender to the Immigration Department they jointly raised a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by the creditors of the 1^st Applicant for failing to repay her loans.  They were subsequently released on recognizance pending the determination of their claim.

2.The 1^st Applicant (“A1”) was born and raised in Haiphong City, Vietnam.  In 2003 she married her husband who was in the real estate business in Haiphong City, and in the following year she gave birth to the 2^nd Applicant (“A2”).

3.In between 2006 and 2011, A1 and her husband borrowed loans from 12 persons, mainly their neighbours in their home district for the purpose of their real estate business, and made their loans repayments by instalments with interest.

4.However, by end of 2011 their business was doing so poorly that they had difficulties making their loans repayments, and soon some of their creditors started to come to their home to demand for repayment of their loans with threats to kill them and their son if they failed to do so.

5.As a result A1 and her husband fled to Hanoi to hide in their friend’s place, during which they frequently had quarrels over their debts which eventually led to their divorce in 2012, and thereafter her husband left for Hong Kong without further news.     

6.Later on 8 June 2012 A1 also departed for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, and when A2 arrived in Hong Kong in 2014, A1 also raised a similar claim on his behalf, for which she completed a Non-refoulement Claim Form on 21 September 2017 jointly for herself and A2, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 20 October 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the creditors upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that their problems with the creditors were private monetary disputes without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Vietnam with a large population of 95 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other part of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for those creditors to locate them.

9.On 3 November 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not find it necessary to conduct any oral hearing and dealt with their appeal in their absence and on paper, as it took no issue with the credibility of their claims of fear of being harmed or killed by the creditors upon their return to Vietnam.  On 15 November 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted A1’s claim of fear of harm from the creditors but found their disputes were private personal monetary matters without any state or official involvement that state/police protection would be available to the Applicants upon their return to Vietnam as well as reasonable internal relocation for them to move safely to other area away from their home district without any risk of being located by A1’s creditors that their claim for non-refoulement protection failed on all applicable grounds.

11.On 29 November 2018 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form, and in her supporting affirmation of the same date she merely repeated her claim of fear of being harmed or killed by her creditors if refouled to Vietnam without putting forward any proper grounds for their intended application.  Nor did they attend the oral hearing of their application.  As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their 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 Applicants’ 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 their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them 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 Applicants’ claim.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.
 

Dated the 2^nd day of September 2020. 

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