Nguyen Thi Xuan v. Torture Claims Appeal Board

HCAL 596/2023

[2024] HKCFI 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 596 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 53-year-old national of Vietnam who last entered Hong Kong illegally on 15 November 2020 and was arrested by police some 6 months later on 13 May 2021, for which she was subsequently convicted and sentenced to prison for 15 months.  Upon her discharge from prison and was referred to the Immigration Department for deportation, 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 unpaid debts.

2.The Applicant was born and raised in Van Lam County, Hung Yen Province, Vietnam.  After leaving school she worked as a farmer, got married and raised a family with 2 children in her home district.

3.In 2016 she worked in a power plant in Quang Ning where she had some dispute with her manager who then made threats against her and sent men to attack her that she subsequently fled the country for China and then sneaked into Hong Kong but returned to Vietnam after 2 weeks, but as the threats from her manager persisted, the Applicant departed Vietnam again in January 2017 for China and then again sneaked into Hong Kong and raised a non-refoulement claim for protection, but after her claim was rejected by the Director of Immigration (“Director”) and that her appeal to the Torture Claims Appeal Board (“Board”) was subsequently withdrawn at her own request, the Applicant was repatriated to Vietnam in April 2018.

4.Upon returning to her home district in Vietnam, the Applicant in January 2019 started her own clothing business with the help of a loan from a local money-lender with monthly interest payments until discharge of the loan, which the Applicant initially managed to meet from her business income.

5.However, one day in May 2019 she lost her business in a fire accident, and when she was unable to repay her loan, her creditor then made threats against her, and after being assaulted by men sent by her creditor on 2 occasions, the Applicant fled to Ho Chi Minh City and then Quang Ning.  

6.In November 2020 she was tracked down by her creditor and his men who again beat her badly with threats that next time she would be killed if she still failed to repay her loan.  As a result the Applicant became fearful for her life and decided to leave the country again, which she did on 10 November 2020 for China, and from there she again sneaked into Hong Kong, and upon her subsequent arrest by the police she then raised another non-refoulement claim for protection which the Director treated as a subsequent claim, and for which she completed a Non-refoulement Claim Form (“NCF”) on 23 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 11 January 2022 the Director rejected the Applicant’s subsequent 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s subsequent claim and assessed the level of her being harmed or killed by 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 debts, 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 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.

9.On 26 January 2022 the Applicant again lodged an appeal to the Board against the Director’s decision, and for which she attended an oral hearing on 1 December 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 14 February 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s subsequent claim that it doubted her claim of fear of harm from her creditor that caused her to leave her country again to come to Hong Kong to seek protection, and that in any event even if her claimed risk were real that it arose from some 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 that her claim for non-refoulement protection failed on all applicable grounds.    

11.On 20 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 her non-refoulement claim in failing to recognize that her right to life must be protected by criminal law from the killings that she may face if deported to her home country;

(2)  That the Board failed to appreciate or give weight or importance to the presence of State Acquiescence in her case which 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 her personal background and experience into account;

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

(5)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the 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 by the Board which in itself is enough to render the decision void;

(6)  That that Board failed to attain high standard of fairness in failing to consider the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions that the 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/petition based on findings which the Adjudicator ought to allow the appeal/petition and thus the decision was irrational.

12.These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted in a procedurally unfair manner, or how did the Board fail to rely on relevant COI in assessing her claim, or what relevancy were State Acquiescence or human rights violations to her claim when the factual basis of even her own case was of some private monetary dispute between her and her creditor without any state or official involvement that such complaints are entirely irrelevant that I do not find any of her proposed grounds reasonably arguable for her intended challenge, 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, nor do I find any merits in her intended application.

13.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.

14.In the Applicant’s case, the fact is that it has been correctly 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.                

15.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.

16.Moreover, the Applicant recently in writing requested to withdraw her application as her problem in Vietnam has already been resolved that it is now safe for her to return to her home country.  

17.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 her home country, I accordingly dismiss her leave application.

Dated the 18^th day of January 2024

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