Nguyen Thi Ngoc Ha v. Torture Claims Appeal Board

HCAL 625/2023

[2023] HKCFI 2825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 625 OF 2023

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 43-year-old national of Vietnam who entered Hong Kong illegally on 20 June 2021 and was arrested by police on 18 August 2021 for possession of a false identity card and illegally remaining in Hong Kong which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim to 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. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Thanh Pho Can Tho, Quan Binh Thuy, Phuong Binh Thuy, Vietnam where she never received any schooling and worked from a very young age in various manual labour such as washing dishes cleaning and hawking in her home district.

3.In 2018 she started her own pig farm by borrowing a loan from a local money-lender, but in May 2021 she lost her farm after all her pigs had died from a plague, and when she was unable to repay her loan, her creditor came with his followers to threaten her, and on one occasion beat her severely.  

4.Fearing for her life, the Applicant fled from her home to hide in a friend’s place in Binh Thuy before moving on to Thanh Pho Tu Son to take shelter in her sister’s home, and on 10 June 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 January 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 25 April 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”).

6.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 t 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 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 areas 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.

7.On 10 May 2022 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 5 January 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 April 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her creditor that caused her to leave her country to come to Hong Kong for protection, and that in any event it was a private monetary dispute between the 2 of them 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 that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 28 April 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Adjudicator reached the decision wrongly in assessing the Applicant’s non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test in failing to recognize that her right to life must be protected by criminal law from the killing that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or give proper weight or importance to the presence of State Acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account in the assessment of her claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect and failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant;

(5)  That the Adjudicator was procedurally improper or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any response which was a clear case of unfair attitude shown which in itself is enough to render its decision void;

(6)  That the Board failed to attain high standards of fairness in failing to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by reports from various human rights organizations which stated testament to the Applicant’s assertions that its decision should be considered unreasonable in the scope of public law; and

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal on findings which ought to allow the appeal and thus its decision was irrational.

10.Those are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator act unreasonable or procedurally unfair or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI , or what relevancy is State Acquiescence to her case which on the factual basis of even her own case was a private monetary dispute between her and her creditor without any state or official involvement. As such, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.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.

12.In the Applicant’s case, 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 her claim if real 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.                

13.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.

14.Moreover, the Applicant recently on 6 September 2023 wrote to withdraw her application as it is now safe for her to return to her home country.

15.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 now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 2^nd day of November 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