Nguyen Thi Chau Alias Nguyen Thi Phuong v. Torture Claims Appeal Board

HCAL 1811/2019

[2022] HKCFI 2613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1811 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 national of Vietnam in her 40s who last entered Hong Kong illegally on 29 April 2013 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 a village in Nghe An Province, Vietnam. After leaving school she worked as a delivery worker, and continued to reside with her parents in her home village.

3.In 2003 she started a timber business with her friend, and in 2005 for the purpose of expanding the business she borrowed a loan from a local money-lender repayable within 5 months and with interest charged on the loan payable per month until discharge of the loan.

4.However, shortly thereafter her mother became seriously ill that she had to give up her business to look after her mother, and when she was having difficulty repaying her loan, the money-lender sent his men to threaten and beat her that she fled to Quang Ninh, and in December 2006 she travelled to Mong Cai where she departed Vietnam for China, and from there she sneaked into Hong Kong, but upon her subsequent arrest by the police, she was repatriated to Vietnam in July 2008.

5.After her return to Vietnam, the Applicant stayed in Ho Chi Minh City to avoid her creditor, but when she heard that her creditor was still looking for her everywhere, she again departed Vietnam in November 2011 for China, and from there she again sneaked into Hong Kong, and upon her subsequent arrest by the police, she was repatriated back to Vietnam in March 2013.

6.Upon returning to Vietnam, she then travelled back to her home village to visit her parents, during which she was spotted by her creditor and his followers who proceeded to beat her and threatened to kill her if she still failed to repay her loan. Fearful for her life the Applicant again fled to Mong Cai, and from there she again departed Vietnam for China and then sneaked into Hong Kong, for which she was subsequently charged, convicted and sentenced to prison for 26 months, during which she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 29 September 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”).

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 her creditor and 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 evidence of any real intention of them to seriously harm or kill her other than to put pressure on her to repay her loan, that it was in any event 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 the country away from her home district in large cities such as Ho Chi Minh City where she had stayed before without incidents and where it would be difficult if not impossible for her creditor to locate her.

9.On 13 October 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 17 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 June 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence as to her alleged loan from her creditor for her business and the subsequent loss of her business that it doubted the credibility of her claim of harm from her creditor that caused her to flee from her country for Hong Kong on 3 occasions, and 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 upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country 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.

11.On 2 July 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 just repeated as 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.

12.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.

13.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 36 – 43 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, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.The fact is that it has also been established by both the Director and the Board in their respective 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.

15.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.

16.Furthermore, the Applicant recently on 8 July 2022 filed an affirmation requesting to “cancel” her application as she wishes to return to Vietnam.

17.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 of her wish to return to her home country, I accordingly dismiss her leave application.

Dated the 26^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