Case Document

100%Judiciary

HCAL 393/2019

[2022] HKCFI 1005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 393 of 2019

BETWEEN
	Khuc Thi Mai Trang	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 39-year-old national of Vietnam who entered Hong Kong illegally on 31 March 2017 and was arrested by police on the same day. 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 over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Haiphong City, Vietnam. After leaving school she worked in various jobs, and continued to live with her parents in her home district.

3.In 2010 she borrowed a loan from a local money lender for her father’s medical expenses for his cancer treatment, with monthly interest payable until discharge of the loan, but when she later failed to make any interest payments, the money lender sent men to threaten and beat her, and after being assaulted for no less than 4 occasions, the Applicant in 2011 fled to Mong Cai, and in July she departed Vietnam for China to work in a pig farm in Guangdong Province, but there she was held captive by the owner and was forced to work as a slave during which she was also raped and abused.

4.Eventually in 2017 she was able to make her escape from the pig farm for Luohu, and from there she sneaked into Hong Kong in March 2017, 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 13 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 11 October 2017 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”).

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 creditor and her creditor’s followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no real intention of her creditor to seriously harm or kill her other than to put pressure on her to repay her loan, that in any event it was a private monetary dispute between them 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 96 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 Danang where it would be difficult if not impossible for her creditor to locate her.

7.On 16 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the decision of the Director, and for which she attended 2 oral hearings on 8 and 23 of October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to the threats of harm from her creditor that it doubted the credibility of her claim of fear of such harm that drove her to come to Hong Kong for non-refoulement protection, and that in any event it was a private monetary dispute between her and her creditor without any official involvement that state/police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.On 12 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the decision of the Board, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just attached a copy of the decision but 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.

10.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.

11.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if true 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.

12.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.

13.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 8^th day of April 2022.

(K.H. LI)
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 8 April 2022 Khuc Thi Mai Trang 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 8 April 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 8853/17/10/183/V1744 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2194/17 (formerly RBCZ 11078/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)