Vu Thi Kim Loan v. Torture Claims Appeal Board and Another

HCAL 1028/2018

[2021] HKCFI 943

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1028 of 2018

BETWEEN

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:

1.The Applicant is a 41-year-old national of Vietnam who entered Hong Kong illegally on 24 December 2015 and was arrested by police on 1 January 2016. After she was referred to the Immigration Department for investigation, 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. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hai An District, Haiphong City, Vietnam. After leaving school she worked in the factory, got married and raised a family of 2 children, and in 2004 started to run her own business selling sea products in the market.

3.In 2008 she decided to expand her business by borrowing a loan from a local money-lender repayable within 1 year with interest payable on daily basis.

4.However, in May 2009 she found herself unable to repay the loan, and upon negotiations her creditor agreed to postpone the repayment deadline but the Applicant would have to make daily interest payment at a higher rate, which she did until end of 2010 when she was again unable to repay the loan.

5.As a result her creditor started to make threats against her, and as she became fearful for her life, she therefore fled to China, but in late 2012 as she missed her children, she therefore returned to Vietnam but stayed away from her home to avoid her creditor, and when she heard that her creditor and his men were still looking for her everywhere, she therefore departed Vietnam again on 21 December 2015 for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 10 November 2016 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 her 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her creditor or his men upon her return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that her problem with her creditor was a private monetary dispute 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 95 million people spread across a vast territory of more than 310,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Vietnam away from her home district in large cities such as Vang Tau or Ha Noi City where it would be difficult if not impossible for her creditor to locate her.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, and for which she attended an oral hearing on 26 February 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 25 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claimed fear of threats from her creditor as unreliable, but found in any event in the absence of any evidence of state or official involvement that state/police protection would be available to her 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 fear of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.On 6 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting statement of the same date she merely attached copies of those decisions but without putting forward any ground for her intended challenge, 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 Director or the Board or in their decision, 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 her 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 9^th day of April 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