Le Thi Thanh Thuy v. Torture Claims Appeal Board

HCAL 278/2022

[2022] HKCFI 3101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 278 of 2022

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 28-year-old national of Vietnam who entered Hong Kong illegally on 26 March 2021 and was arrested by police on 20 April 2021. 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 unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hanoi, Vietnam. After leaving school she worked in various manual jobs, and in February 2019 she started her own manicure business by borrowing a loan from a local money-lender repayable within 1 year and with monthly interest payments.

3.Initially the Applicant managed to make her monthly interest payments to her creditor from her business income, but due to poor business caused by the Covid-19 pandemic, she started to default with her loan repayment by December 2019, and one day in August 2020 her creditor sent some men to beat her with wooden sticks, and threatened that she would be killed if she still failed to repay her loan within one month.

4.Fearing for her life the Applicant fled to Ho Chi Minh City where she stayed for 5 or 6 months without incidents, but when she later heard from her parents that her creditor had sent men to look for her everywhere, she therefore departed Vietnam on 26 February 2021 for China, and from there she later sneaked into Hong Kong, and upon her arrest by police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While released on recognizance pending the determination of her claim, the Applicant was again arrested by police on 9 July 2021 for the offence of managing or assisting in the management of vice establishment for which she was then remanded in custody pending trial.

6.By a Notice of Decision dated 27 October 2021 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”).

7.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 their intention to seriously harm or kill her other than to press 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 98 million people spread across a vast territory of more than 330,000 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.

8.On 8 December 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as her Notice of Appeal was deemed to have been filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) of the Ordinance as amended on 1 August 2021, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and on 13 April 2022 the Board refused the late filing of her Notice of Appeal.

9.In its decision the Board found the Applicant to have been 26 days late with her Notice of Appeal, that there was no good reason for her serious delay as stated in her statement in her Notice, nor were there any circumstances beyond her control which might account for her failure to file her Notice of Appeal within the required period, and that there were no merits in her appeal given that it was a private dispute between her and her creditor without any official involvement that the Director was correct to find that both state protection and internal relocation would be available to the Applicant upon her return to Vietnam to negate any such risk.

10.On 28 April 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various complaints against the decision which may be summarized as follows for her intended challenge:

(1)  That the Director and the Board wrongly determined that internal relocation was available to the Applicant without taking into proper account of the difficulties and obstacles that she would have to face if relocated to a new place with no guarantee that she would be able to adapt to the new place or to find a job to support herself;

(2)  That the Board failed to consider the possibility that the loan shark would be able to bribe the police or government officials to locate the Applicant’s whereabouts in the new place of relocation; and

(3)  That the Decision to refuse the Applicant’s appeal was clearly wrong and unsafe and unreliable in its assessment that it would be safe for the Applicant to relocate to her home country.

11.These are however all just broad and vague assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they would apply to the Board’s decision in refusing to allow the late filing of her Notice of Appeal that I do not find any of them relevant to her case or reasonably arguable 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, nor do I find any reasonably arguable basis for her intended application.

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 refused to allow the late filing of her Notice of Appeal on its findings based on correct application of the relevant law as amended on 1 August 2021, and that it also included a detailed consideration of the merits of her appeal which was in effect no longer necessary due to those amendments as properly explained in the Board’s decision. As such and in the absence of any error of law or procedural unfairness in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge those findings of the Board.

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

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 the Director’s consideration and assessment of the Applicant’s claim or the Board’s decision to refuse the late filing of her appeal.

16.Furthermore, the Applicant recently on 16 August 2022 filed an affirmation requesting to “withdraw and cancel” her case as is it now safe for her 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 that it is now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 7^th day of October 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