Case Document

100%Judiciary

HCAL 149/2019

[2021] HKCFI 3550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 149 of 2019

____________________

BETWEEN
	Dang Thuy Trinh	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

____________________

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 37-year-old national of Vietnam who entered Hong Kong illegally on 15 June 2012 and was arrested by police on 20 June 2012 for the offences of overstaying and thefts for which she was subsequently convicted and sentenced to prison for 15 months. Upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Le Chan County, Hai Phong City, Vietnam. After leaving school she married her husband, but when their relationship did not fare well, the Applicant started to indulge in drugs which she bought from a pair of local drug dealers, and when she ran out of money for purchasing drugs, she would borrow money from those drug dealers, and when she was unable to repay them, she was beaten by them and was forced to steal things from shops for them as part of her repayments, for which she had been arrested by police twice and sent to prison.

3.After her discharge from prison for her second conviction, her creditors continued to press her for repayment of her debts or else to continue to steal for them, but as the Applicant did not want to be arrested by police again, and in order to avoid the threats from her creditors, she therefore departed Vietnam on 13 June 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, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 22 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”).

5.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 creditors upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that she had already served her sentences for the offences of theft that there is no reason for her creditors or the authorities to have any further adverse interest in her, that in any event her problems with her creditors were private monetary disputes 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 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 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 creditors to locate her.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 2 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board regarded the Applicant’s evidence about her claimed fear of harm from her creditors as vague and contradictory that it doubted the credibility of her claim, but found in any event that her problems with her creditors were private monetary disputes without any 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 safely move to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

8.On 16 January 2019 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 of being killed by her creditors if refouled to Vietnam but without putting forth 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.

9.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.

10.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.

11.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.

12.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 24^th day of November 2021.

(Chasel Man)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 24^th November 2021 Dang Thuy Trinh Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24^th November 2021 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 5418/16/12/65/V693 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2251/16 (Formerly RBCZ 3000521/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)