Nguyen Thuy Van v. Torture Claims Appeal Board

HCAL 1457/2022

[2023] HKCFI 1565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1457 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 54-year-old national of Vietnam who entered Hong Kong illegally on 29 January 2021 and was arrested by police more than one year later on 23 February 2022, for which she was subsequently convicted and sentenced to prison for 11 months, during which she raised a non-refoulement claim to the Immigration Department for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts.

2.The Applicant was born and raised in Quang Ninh Province, Vietnam. After leaving school she worked as a hawker, got married and raised a family with 2 children in her home district.

3.In early 2020 she started her own clothing business by borrowing a loan from a local money-lender repayable within one year with monthly interest payments, but when her business was later seriously affected by the Covid-19 pandemic and started to default with her loan repayments, her creditor came with some men to threaten her and vandalized her home, and after being beaten violently by them with wooden sticks on one occasion in December 2020, the Applicant fled to hide in a friend’s place in Cam Pha, and on 25 January 2021 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and after 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 17 June 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 10 August 2022 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her creditor and followers upon her return to Vietnam 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 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 103 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 areas of the country away from her home district in large cities such as Ho Chi Minh City or Hanoi where it would be difficult if not impossible for her creditor to locate her.

6.On 31 August 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as her Notice of Appeal upon properly completed was found to have been filed after the expiry of the 14-day period under Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a Decision dated 17 November 2022 the Board refused the late filing of the Applicant’s Notice of Appeal.

7.In its decision the Board found the period of delay for 5 days as not significant, but that the Applicant had failed to provide any proper reason or explanation for her such delay, or any or sufficient evidence of any due diligence by her to file her Notice of Appeal within the period as specified in Section 37ZS(1) or that there were any circumstances beyond her control which had made it impossible for her to file her Notice of Appeal within such time, and that in any event there were no merits in her appeal even putting her claim at the highest that she could always relocate to other part of Vietnam without any risk of being located by her creditor.

8.On 9 December 2022 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 or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. 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.

9.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.

10.In the Applicant’s case, the Board refused the late filing of her Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision including the merits of her claim or appeal notwithstanding that it is no longer necessary for the Board to do so after the amendments to the relevant Section 37ZT of the Ordinance in August 2021, and that 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.

11.In any event the fact is that it has been established by both the Director and the Board in their respective 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.

12.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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s determination of her application for late filing of her Notice of Appeal.

13.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse her leave application.

Dated the 14^th day of June 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