Guyen Thi Hai v. Torture Claims Appeal Board

HCAL 1026/2018

[2021] HKCFI 1721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1026 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 42-year-old national of Vietnam who entered Hong Kong illegally with her husband in November 2013 and subsequently surrendered to the Immigration Department on 10 December 2013 when 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, while her husband also separately raised his non-refoulement claim on the same basis.

2.The Applicant was born and raised in Henan Province, Vietnam. After leaving school she married her husband, raised a family of 3 children in her home district, and in 2006 together with her husband ran a business making rattan household items by borrowing a loan from the bank by pledging their house as security, plus a further loan in 2009 for their business’s cash flow situation from a local money-lender with monthly interest payments.

3.However, by late 2013 the Applicant and her husband were unable to repay their loans to the bank or the money-lender, for which they lost their house to the bank, and after her husband had been beaten by the money-lender and his followers with wooden sticks and with death threats made against them if they still failed to repay their loan, the Applicant and her husband became fearful for their life, and so one day in November 2013 they departed Vietnam for China, and from there they later sneaked into Hong Kong and raised their respective non-refoulement claim separately for protection, for which the Applicant completed her Non-refoulement Claim Form (“NCF”) on 13 June 2016 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.While released on recognizance pending determination of her claim, the Applicant was arrested by the police on 23 June 2015 for possession of a false identity card and for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 15 months.        

5.By a Notice of Decision dated 13 July 2016 the Director of Immigration (“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 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”).

6.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 her creditor and his men upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that her problem with them 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”) shows 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 to other parts 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 creditor to locate her.

7.By a Notice of Further Decision dated 5 July 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 her husband had been repatriated to Vietnam upon the rejection of his claim by the Director, but the Applicant had lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions in rejecting her claim, 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 28 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted the Applicant’s claim of monetary dispute with her creditor but found no evidence of her being subjected to any threat or ill-treatment by her creditor which caused her to leave her home country, and concluded in any event that with state/police protection available to her upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located by her creditor 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 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 attached a copy of the decision and repeated her claim that she will be killed by her creditor over her debt without putting forward any proper 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 irrationality 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 her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts 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 16^th day of June 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