Vu Thi Nam v. Torture Claims Appeal Board

HCAL 1083/2018

[2021] HKCFI 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1083 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 35-year-old national of Vietnam who entered Hong Kong illegally on 13 December 2012 and was arrested by police on the same day, for which she was subsequently convicted and also for possession of a forged identity card and was sentenced to prison for 15 months, Upon her discharge from prison, and when she was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan, and when her daughter was later also arrested for illegally remaining in Hong Kong and was referred to the Immigration Department, the Applicant also raised a non-refoulement claim for her on the same basis and which were jointly determined together by the Immigration Department. They were subsequently released on recognizance pending the determination of their claim.

2.The Applicant was born and raised in Sau Phien Hamlet, An Lu, Thuy Nguyen, Haiphong City, Vietnam. After leaving school she married her husband and raised a family of three children.

3.Later in their marriage her husband started to abuse illegal drugs and frequently demanded money from the Applicant for his habit, and when she was unable to do so, he would become abusive towards her with violence.

4.In order to meet her husband’s financial demand, the Applicant in 2008 decided to run a business as a fishmonger by borrowing a loan from a local wealthy businessman repayable within 4 years with interest charged on the loan payable every month.

5.However, in 2012 she lost her business after her fish pond was destroyed by typhoons, and was therefore unable to make any repayments towards her loan, and when her creditor and his men started to make threats against her, the Applicant therefore departed Vietnam in December 2012 for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, and when her daughter also later departed Vietnam for Hong Kong to avoid threats from the creditor and raised the same claim, for which the Applicant completed a Non-refoulement Claim Form (“NCF”) on 3 July 2015 jointly for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

6.By a Notice of Decision dated 25 September 2015 the Director of Immigration (“the Director”) rejected the claim of the Applicant and her daughter on all the 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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and her daughter and assessed the level of risk of harm from her husband or her creditor and his men upon their return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that their problems were private domestic or monetary disputes without any official involvement that state or police protection would be available to the Applicant and her daughter 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 safely with her daughter 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 husband or her creditor to locate them.

8.By a Notice of Further Decision dated 1 December 2016 the Director again rejected the claim of the Applicant and her daughter in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to their 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”).

9.By then the Applicant and her daughter were 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 5 October 2015, and for which the Applicant attended an oral hearing on 20 November 2017 before the Board. On 28 March 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the information/evidence given by the Applicant earlier to the Director in material particulars not reliable and that her claim not acceptable, and that in any event with state/police protection available to the Applicant and her daughter upon their return to Vietnam to negate their perceived risk as well as with reasonable internal relocation for them to move safely to other area away from their home district without any risk of being located by the Applicant’s creditor that their claim for non-refoulement protection failed on all applicable grounds. 

11.On 13 June 2018 the Applicant filed her Form 86 for herself only 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 repeated her claim of fear of harm from her creditor and complained that the Board was wrong in not believing her claim of threats from her creditor which led to its unreasonable decision of rejecting her claim. At the hearing of her application, the Applicant did not elaborate further about her complaint or put forward any further grounds for her intended application, and merely asked that she be allowed to remain in Hong Kong to look after her daughter.

12.A close scrutiny of the Board’s reasons for rejecting the Applicant’s claim on her credibility does reveal some basis for her complaint, as despite having attended an oral hearing during which one can only assume that the Applicant would have given much evidence and/or answered questions raised by the Adjudicator in respect of her claim, but I am unable to find any such record or discussion or analysis of her evidence from that  hearing in the Board’s decision, despite the fact that the Adjudicator did raise various queries as to what he considered to be inconsistencies in the information earlier provided by the Applicant in her NCF or her screening interview before the immigration officer which he set out in paragraphs 36 – 48 of the decision, and which led the Board to conclude that those information given by the Applicant were unreliable [47].

13.If it were the case that the Applicant had declined to give evidence or to answer questions from the Adjudicator during the oral hearing, the Board should have stated so including her reasons if any for refusing to do so. If on the other hand that the Applicant did give evidence and/or answer questions during the hearing, as mentioned above the Board should have set them out in details, analyzed them accordingly and elaborated why they were found to be unreliable. I am unable to find either in the decision, which is wholly unsatisfactory in particularly when the Adjudicator had found the credibility of the Applicant at issue.   

14.However, the Board did go on to find, correctly in my view, that even if the information/evidence given by the Applicant were accepted as true, that her claim would still fail as in the absence of any evidence of any official involvement that state/police protection would be available to her and her daughter upon their return to Vietnam as well as reasonable internal relocation for them to move safely elsewhere in Vietnam away from their home district without any risk of being located by her creditor. In the absence of any error in such assessments of the Board being clearly and properly identified by the Applicant, I do not believe that her complaint over the Board’s assessment of her credibility would ultimately assist or advance her intended challenge against the Board’s decision, nor do I find any reasonably arguable basis to challenge such findings of the Board.

15.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.

16.In the Applicant’s case, as noted above, 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 her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam with her daughter, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

17.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.

18.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 11^th day of January 2021.

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