Bui Thi Quy v. Torture Claims Appeal Board

HCAL 1233/2021

[2023] HKCFI 1226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1233 OF 2021

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 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 34-year-old national of Vietnam who had previously twice entered Hong Kong illegally and was subsequently arrested and repatriated to her home country again entered Hong Kong illegally on 10 August 2020 and was arrested by police on 1 September 2020. 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 being released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Duong Lien Xa, Xa Van Ninh, Thanh Pho Mong Cai, Vietnam. After leaving school she worked as a farmer and then a hotel worker in her home district.

3.In October 2017 she entered Hong Kong illegally to look for jobs but was arrested by police and repatriated to Vietnam on 28 December 2017.

4.Just one year later in January 2019 she again entered Hong Kong illegally and was again repatriated to Vietnam 2 months later on 28 March 2019.

5.Upon returning to her home district, the Applicant started her own hawking business with a loan from a local money-lender with monthly interest payments until discharge of the loan.

6.Initially the Applicant managed to make her interest payments to her creditor, but in March 2019 she started to have difficulties making the payments, and soon her creditor would come with his followers to threaten to sell her to gangsters as prostitute, and so she fled to Hai Phong City to hide in a friend’s place.

7.However, one day in June 2020 she ran into her creditor and his followers on the street who proceeded to beat her until intervened by other passers-by. Thereafter the Applicant felt it was no longer safe to remain in Vietnam, and so in August 2020 she departed for China, and from there she again sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 24 May 2021 the Director of Immigration (“The 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) 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 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 press her to repay her loan, that in any event it was a private monetary dispute between them without any official involvement that state 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 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.

10.On 2 June 2021 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 13 August 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 26 August 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to leave her country to come to Hong Kong, and that in any event even if her claim were true that it was a private monetary dispute between her and her creditor 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.

12.On 1 September 2021 the Applicant filed her Form 86 for leave to apply for judicial review of Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she stated as follows:

“To Judicial Review against the Decision dated 26 August 2021 from Torture Claims Appeal Board / Non-refoulement Claims Petition Office.

The Decision has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country. My life is in danger now. I am pursuing by my creditor and gangsters. If return to Vietnam, I will be torture, threatened and killed by them. I hope that my case is reviewed again.”

13.Apart from repeating her claim as before of being harmed or killed by her creditor if returned to her home country, the only complaint of the Applicant as regard the Board’s decision is that she was not given the opportunity to clarify her case, but which is however factually wrong as it is clearly recorded in the Board’s decision that she was able to confirm and clarify her case during her oral hearing before the Board and also to give further evidence and to answer questions raised of her claim by the Adjudicator that there is simply no basis at all for her to make such a complaint (see [26] - [73] of the Decision). As such I do not find this ground of the Applicant reasonably arguable for her intended challenge.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their decisions that the risk of harm in her 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.

16.In the premises and 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.

17.Furthermore, the Applicant recently filed an affirmation requesting to withdraw her case as it is now safe for her to return to her home country.

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

Dated the 10^th day of May 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