Tran Bich Ngoc v. Torture Claims Appeal Board

HCAL 880/2022

[2023] HKCFI 1280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 880 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 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 37-year-old national of Vietnam who had previously twice entered Hong Kong illegally and was subsequently arrested and repatriated to her home country, and on 30 October 2020 she again entered Hong Kong illegally, and after she was arrested by police on 17 November 2020 and 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 Ngo Quyen District, Haiphong, Vietnam. After leaving school she worked as a salesperson in a clothing shop in her home district, and in 2013 she started to run her own clothing business by borrowing a loan from a local money-lender repayable within 2 years and with monthly interest payments.

3.Initially the Applicant was able to make her monthly interest payments to her creditor for about one year, but starting in 2014 she was having difficulty making the payments due to downturn of her business, and when her creditor came with his followers to threaten her and vandalized her shop, the Applicant fled from her home district to hide in other places, and in August 2016 she departed Vietnam for China and sneaked into Hong Kong to look for jobs, but was soon arrested by police and was in September 2016 repatriated to Vietnam.

4.Upon returning to her home district, her creditor again came with his followers to threaten the Applicant, and after being beaten by them on one occasion in September 2017 when she suffered injuries to her head which required medical treatments in the local hospital, the Applicant again on 22 September 2017 fled from Vietnam for Hong Kong, and upon her subsequent arrest by the police, she was repatriated to Vietnam on 24 October 2017.

5.The Applicant did not return to her home district and instead stayed in a neighbouring town where she found a job working in a garment shop, but one day in December 2018 her creditor and followers came to her shop and threatened to kill her if she still failed to repay her loan within 3 days, the Applicant then fled to Hanoi, but several months later she was again located by her creditor, and after another beating and death threats, the Applicant departed Vietnam on 28 October 2020 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 July 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 24 September 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 his 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 upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from her creditor and followers, 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 102 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 Da Nang where it would be difficult if not impossible for her creditor to locate her.

8.On 7 October 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 4 January 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 August 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from her creditor but found in the absence of any official involvement that it was just a private monetary dispute between the two of them 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.

10.On 5 September 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in which she repeated her claim of fear of harm from her creditor as before, and complained that the Board was wrong in suggesting that she could relocate to other part of her home country to avoid such risk as it is not feasible for her to do so given that her health is not good, that she is not an active person which may disadvantage her in the labour market, and with nationwide social network that her creditor would be able to locate her anywhere in Vietnam. The Applicant did not request any oral hearing for her application.

11.The Applicant however never raised any health issue or suggested any effect on her earning capacity or any corroborating medical evidence either to the Director or the Board (see [6.26] – [6.27] of Director’s decision and [92] of Board’s decision), and given her relatively young age and past earning experience, and on the basis of the relevant COI, the Board was certainly in my judgment entitled to make its finding as to internal relocation being a viable option to the Applicant upon her return to her home country to negate any risk from her creditor. As such and in the absence of any error of law or irrationality or procedural unfairness in his 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 fact is that it has correctly been established by both the Director and the Board in their respective decision that the risk of harm in her 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.

14.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.

15.Furthermore, the Applicant recently filed an affirmation requesting to withdraw her application as she wants to return to her home country.

16.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 she has no problem returning to her home country, I accordingly dismiss her leave application.

Dated the 15^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