Hoang Thi Nguyen v. Torture Claims Appeal Board

HCAL 906/2022

[2024] HKCFI 310

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 906 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 50-year-old national of Vietnam who entered Hong Kong illegally on 8 April 2020 and was arrested by police on 22 February 2021 for illegal entry and for using a fake identity card for 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.

2.The Applicant was born and raised in Thon Bac, Xa Van Linh, Mong Cai, Quang Ninh, Vietnam. After leaving school she married her husband and raised a family with 3 children in her home district.

3.In 2015 the Applicant and her husband started to run their shrimp farm business operating a shrimp farm business but which did not fare well, and in 2018 her husband was hospitalized for cancer, and to meet his medical expenses the Applicant borrowed a loan from a local money-lender, but after her husband later died in September 2018, their shrimp business was subsequently also closed down.

4.By June 2019 the Applicant was unable to repay her loan, and as a result her creditor sent his followers to threaten her, and after her home was vandalized and damaged by them, the Applicant became fearful for her life and fled to take shelter in her brother’s home, and on 5 April 2020 she departed Vietnam for China, and from there she later 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 3 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 10 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 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 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 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 where it would be difficult if not impossible for her creditor to locate her.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 May 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 August 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of monetary dispute with her creditor over her outstanding debts but found any risk of harm arising from what was essentially a private monetary dispute between the 2 of them only without any official involvement would be negated by state or police protection being available to the Applicant upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 9 September 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or in her supporting affirmation of the same date other than a regurgitation of her claim as before and that she does not agree with its assessment of internal relocation for her to move to other part of her home country without any risk of being located but without providing any proper or relevant details or elaboration as to why it is so. 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.

10.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.

11.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his 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, a decision also confirmed by the Board, 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.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.

13.Moreover, the Applicant recently on 13 November 2023 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country but without providing any further details or explanations for her assertion.  

14.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 refuse to grant leave and accordingly dismiss her leave application.

Dated the 26^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