Nguyen Thi Thanh Loan v. Torture Claims Appeal Board

HCAL 1405/2022

[2023] HKCFI 465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1405 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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of the Director of Immigration dated 28 October 2021 be refused; and

2.  the application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Vietnam who entered Hong Kong illegally sometime in April 2021 and was arrested by police on 10 May 2021 for possession of a fake identity card for which she was subsequently convicted and sentenced to prison for 12 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 her creditor over her unpaid debts.

2.The Applicant was born and raised in Halong City, Quang Ninh Province, Vietnam. After leaving school she married her husband and raised a family with 2 children, and worked as a fisherman to support the family.

3.In early 2019 she purchased a fishing boat with a loan from a local money-lender repayable within 5 years and with monthly interest payments, of which she managed to do until July 2020 when she lost her fishing boat to a storm, and started to have difficulty making her loan repayments.

4.Initially her creditor was willing to give her more time to make her payments, but eventually he lost his patience with her constant defaults that he would send men to threaten and beat her that caused her injuries which necessitated medical treatments.

5.Eventually after many such beatings, the Applicant fled to a neighboring town to take shelter in a relative’s place, but when she heard that her creditor had sent men looking for her everywhere, she felt it was no longer safe to remain in Vietnam, and so one day in April 2021 she departed for China, and from there she later sneaked into Hong Kong, and after her arrest for possession of a fake identity card and was subsequently sent to prison, she then raised her non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 28 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 her creditor to seriously harm or kill her other than to press her for repayment of 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 100 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 it would be difficult if not impossible for her creditor to locate her.

8.On 30 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before her appeal was heard or dealt with by the Board, the Applicant by a letter dated 15 July 2022 applied to withdraw her appeal/petition, and by a Decision dated 8 August 2022 the Board allowed her application, and accordingly dismissed her appeal/petition and confirmed the Director’s decision.

9.However, some 4 months later on 5 December 2022 the Applicant filed a Form 86 for leave to apply for judicial review of what she stated to be a decision dated 28 October 2021 of the Director which rejected her “subsequent claim”, but of which the Director has confirmed to have made only one decision regarding the Applicant’s claim, i.e. the one dated 28 October 2021 referred to above which rejected her non-refoulement claim on all applicable grounds, but for which the Applicant failed to put forward any ground for seeking relief either in her Form or in her affirmation, or for that matter any explanation as to why having earlier already withdrawn her appeal/petition to the Board that she now seeks to again challenge the Director’s decision, nor did she request any oral hearing for her application.

10.In the absence of any explanation or evidence from the Applicant of any misrepresentation or misinformation in her decision to withdraw her appeal/petition, and once the Board had accordingly dismissed the appeal against the Director’s refusal of her claim upon what seems to me a valid withdrawal, her appeal was no longer extant and the Board therefore became functus officio with no jurisdiction to take any further step regarding the appeal.

11.Accordingly, I proceeded to deal with the Applicant’s intended challenge of the Director’s decision which the Board had confirmed, but as noted above she has failed to put forth any proper ground or identified any error of law or irrationality or procedural unfairness in her process before the Director, for which she was then legally represented by DLS, or in the decision. As such I do not find any reasonably arguable basis for her intended challenge, even if one were to ignore the fact that her such intended application was also already out of time for leave to apply for judicial review as required under Order 53 rule 4(1) of the Rules of the High Court.

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 fact is that it has been correctly established by the Director in his decision that the risk of harm in her claim arose from a private monetary dispute between the Applicant and her creditor only without any official involvement that state/police protection would be available to her upon her return to Vietnam on the basis of the relevant COI, and upon which the Director was also correct to find that any risk arising therefrom is a localized one and that it is not unreasonable or unsafe for the Applicant to relocate to other part of her country away from her home district without any risk of being located by her creditor, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.In the premises and having considered the decision of the Director, and for that matter of 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 respective consideration and assessment of the Applicant’s claim or her application to withdraw her appeal/petition.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 20^th day of February 2023.

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