Do Thi Thuan v. Torture Claims Appeal Board

HCAL 1767/2019

[2022] HKCFI 2503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1767 of 2019

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 65-year-old national of Vietnam who entered Hong Kong illegally on 3 November 2013 and was arrested by police on 4 November 2013 for theft for which she was subsequently convicted and sentenced to prison for 17 months, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Vietnam she would be harmed or killed by some local drug dealers who had accused her husband of stealing their illegal drugs. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cau Dat, Hai Phong, Vietnam. After leaving school she worked in the construction field, married her husband and raised a family with 2 children in her home district.

3.The Applicant had no knowledge of her husband’s occupation but that he was able to bring home money to support their family. One day in February 2013 he suddenly disappeared without news, and two months later some unknown men came to the Applicant’s home claiming to be triad members looking for her husband whom they accused of having stolen illegal drugs from them, but as she did not know his whereabout, those men then left.

4.However, later in November 2013 those men returned to demand that the Applicant as the wife should pay them for the drugs stolen by her husband, and when she was unable to do so, they kicked her in the head that she fainted and fell to the ground, and was only later discovered by her neighbor and was taken to the hospital for medical treatments.     

5.After her discharge from the hospital, the Applicant became fearful of further attacks by those drug dealers, and so on 3 November 2013 she departed Vietnam for China, and from there she sneaked into Hong Kong on the same day, and after her arrest by the police for theft, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

6.While released on recognizance pending the determination of her claim, the Applicant was again arrested by police on 3 separate occasions between December 2014 and July 2015 for the offence of theft for which she was convicted for each offence and was sentenced to prison for 6 weeks, 9 weeks and 4 weeks respectively.               

7.By a Notice of Decision dated 31 December 2015 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”).

8.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 those drug dealers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill her, that in any event it was a private dispute between them and her husband 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 94 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 the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for anyone to locate her.

9.By a Notice of Further Decision dated 15 November 2017 the Director also rejected the Applicant’s claim for non-refoulement protection under any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”) upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Vietnam.

10.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal for which was filed on 24 May 2017, but as it was deemed to have been filed outside the 14-days period under Section 37ZS (1) of the Immigration Ordinance as regard her appeal against the Director’s earlier decision of 31 December 2015, in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of her appeal against the first decision of the Director, and by its decision dated 3 May 2019 the Board refused to allow the late filing of the Applicant’s appeal against the Director’s first decision of 31 December 2015.

11.In its decision the Board found the Applicant to have been some 16 months late with her notice of appeal against the Director’s first decision, that it was a very serious delay but for which she had failed to provide any good reason, nor was there any relevant fact known to the Board which would make it unjust not to allow its late filing.  

12.The Board however did not find any delay for her appeal against the Director’s Further Decision, and proceeded to hear her appeal on 9 May 2019 for which the Applicant attended in person before the Board during which she gave evidence and answered questions raised of her BOR 2 claim by the Adjudicator for the Board. On 13 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s Further Decision.

13.In this decision the Board considered the factual background and basis of the Applicant’s claim and found serious inconsistencies and discrepancies in her evidence that it did not find her to be a truthful witness when she claimed that those drug dealers never told her the amount which they demanded from her to pay for the drugs said to have been stolen by her husband that the Board found to be wholly incredible and implausible that it rejected the credibility of her claim or that she would be at risk of any harm in her home country, and that in any event in the absence of any evidence of any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Vietnam that her claim for non-refoulement protection failed under the BOR 2 ground.     

14.On 26 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board regarding her BOR 2 Claim, 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 as before but without putting forth any proper ground for her intended challenge. 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 of this second decision 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, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 26 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, and given that the factual basis of her claim even on her own case at the highest simply did not engage the BOR 2 ground in its limited scope, I do not find any reasonably arguable basis to challenge the finding of the Board.  

17.The fact is that it has also been correctly established by the Director in his first decision that the risk of harm in the Applicant’s 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.                

18.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 under the BOR 2 ground, or for that matter in the Director’s assessment of all her other applicable grounds in his first decision either.

19.Furthermore, the Applicant recently on 27 July 2022 filed an affirmation which appears to be prepared with legal assistance requesting to withdraw her application as it is now safe for her to return to her home country, that she would like to be repatriated as soon as possible, and that she fully understands the consequences of such withdrawal. 

20.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that it is now safe for her to return to Vietnam, I accordingly dismiss her leave application.

Dated the 12^th day of August 2022.

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