Lam Thi Sa Phi v. Torture Claims Appeal Board

HCAL 2010/2020

[2022] HKCFI 2673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2010 of 2020

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 39-year-old national of Vietnam who arrived in Hong Kong on 17 February 2019 when she subsequently overstayed, and was arrested by police more than 6 months later on 7 September 2019. 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 the Vietnamese police or authorities for criticizing the government in the social media over its various policies. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Soc Trang, Ke Sach, Thoi An Hoi, Ap Tap Ren, Vietnam. After leaving school she worked in selling electronic gadgets, married her husband and moved to his home district in Ho Chi Minh City to raise a family with 2 children.

3.In 2009 she divorced her husband and moved to live with her children, and in 2018 she together with several others formed a social group to start criticizing various policies of the government on Facebook including allowing foreign investors to develop building projects on lands which she believed should be protected from any development.

4.One night in October 2018 the Applicant and her group members were arrested by police and were detained at the police station where they were individually interrogated, during which the Applicant was accused of being uncooperative and was tortured with electrical shocks that she lost consciousness and was taken to the hospital.

5.Eventually the Applicant and her group were released on the 3^rd day after she had signed a confession statement to the police, but after they left the police station, they were attacked by a group of unknown men on the street whom the Applicant suspected were sent by the police to beat them up that she sustained cuts and bruises all over her body.      

6.After the incident the Applicant became concerned with her safety and on 22 November 2018 she went to Singapore to take shelter in a friend’s place for 2 months before returning to Vietnam on 27 January 2019.

7.However, when she later heard that a member of her group was arrested by police again that she feared the same would happen to her, and so on 17 February 2019 she departed Vietnam  for Hong Kong where she overstayed and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

8.By a Notice of Decision dated 9 December 2019 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”).

9.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 the Vietnamese police or authorities upon her return to Vietnam as low as there is no evidence that she is still being pursued or wanted by the police or authorities when thereafter she was able to leave Vietnam for Singapore and Hong Kong without any problem, that any fear of any further arrest or persecution from the authorities upon her return to Vietnam was not supported by any reliable evidence other than the Applicant’s own speculation, and that reliable and objective Country of Origin Information (“COI”) show that there are laws and judicial system in Vietnam to protect the rights of its citizens from abuses by police or public officials and that the Applicant would be entitled to due process, legal representation and fair trials should there be any proper or formal police investigation of any crimes that she might have been charged upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.

10.On 20 December 2019 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 14 August 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 September 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found no evidence of any further adverse interest that the police or authorities might have in the Applicant after her release from police custody, and given the fact that she was thereafter able to leave the country twice for Singapore and Hong Kong without any problem that it is not accepted that she is still under any police investigation, and the fact that she had since ceased all her former activities or involvement in any criticism of the government in the social media that there is no further reason for the authorities to have any adverse interest in her, and that reliable COI show that there are laws and legal system in Vietnam to protect the rights of its citizens that it concluded that the Applicant will not face any risk of any harm form anyone upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.     

12.On 7 October 2020 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 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.

13.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.

14.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her claim for the thorough and detailed analysis and reasoning set out in paragraphs 49 – 65 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.                 

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 30 June 2022 filed an affirmation requesting to withdraw her application as she wants to return to her home country.

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 2^nd day of September 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