Le Hoai Thu Alias Le Thi Thu v. Torture Claims Appeal Board

HCAL 875/2018

[2020] HKCFI 2330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 875 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 Applicant:

1.The Applicant is a 24-year-old national of Vietnam who entered Hong Kong illegally on 15 October 2014 and surrendered to the Immigration Department on 21 October 2014 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her parents’ creditors over their loan.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born in a refugee camp in Hong Kong but was subsequently brought back to Vietnam by her parents where she was raised in Cam Pha together with her brother.

3.In about 2014 the Applicant started to notice that some men claimed to be her parents’ creditors coming to their home demanding repayment of their loan, and when her parents were unable to do so, those men would utter threats against them and break things in their home, and on one occasion in August 2014, those men turned violent against her mother while the Applicant was hiding in a closet, and after the men had left, the Applicant found her mother lying on the floor with her arm injured and bleeding and had to be taken to the hospital for treatment.

4.Upon being discharged from the hospital, her mother moved the family to stay in the grandmother’s home, and one day in October 2014 the Applicant departed Vietnam with her father for China, and from there they later sneaked into Hong Kong, and on 21 October 2014 the Applicant surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 6 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 19 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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 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 her parents’ creditors upon her 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 her parents and their creditors that there is no evidence or reason for the Applicant to be targeted for harm, that in any event in the absence of 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 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 young adult to move to other part of Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her parents’ creditors to locate her.

7.By a Notice of Further Decision dated 1 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 31 August 2016, and for which she attended an oral hearing on 8 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 22 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the material parts of the Applicant’s evidence as to her claim highly improbable that it did not accept that she would face a real and personal risk of harm from anyone upon her return to Vietnam, and that in any event it was a private monetary dispute between her parents and their creditors without any official involvement that state/police protection would be available upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district in large cities without any risk of being located by her parents’ creditors that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 21 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that her life would be in danger if returned to Vietnam but without putting forward any proper grounds for her intended application, nor did she request any oral hearing for her application.  As such and in the absence of any error of law or procedural unfairness in her 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 her 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

13.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.

14.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 her leave application.

Dated the 21^st 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