Tran Thi Kim Lien and Another v. Torture Claims Appeal Board
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HCAL 1004/2022 [2024] HKCFI 872 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1004 OF 2022 ____________________
____________________ Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicants: 1.The 1st Applicant (“A1”) is a 36-year-old national of Vietnam who entered Hong Kong illegally on 20 May 2019 and surrendered to the Immigration Department some 7 months later on 23 December 2019 when she raised a non-refoulement claim for protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts, and after subsequently giving birth to her daughter, 2nd Applicant (“A2”) in Hong Kong on 30 December 2019, she also raised a non-refoulement claim for A2 on the same basis. They were subsequently released on recognizance pending the determination of their claims. 2.A1 was born and raised in Minh Duc, Thuy Nguyen, Hai Phong, Vietnam. After leaving school she worked as a farmer and in the factory in her home district to make her living. 3.In 2016 she decided to run her own fruits hawking business by borrowing a loan from a local money-lender with interests charged on the loan payable every month until discharge of the loan which A1 managed to make from her business income. 4.However, in 2018 her business was severely affected by rising rent for her stall and by bad weathers, and by December 2018 she defaulted with her interest payments, and when her creditor sent men to threaten her, she promised to resume payments within one month, but thereafter she fled from her home district to Mong Cai to hide in a friend’s place. 5.Later when she heard that her creditor had sent men everywhere looking for her, A1 felt it was no longer safe to remain in Vietnam, and so on 18 May 2019 she departed for China, and from there she later sneaked into Hong Kong and subsequently raised her non-refoulement claim for protection for both herself and her daughter born on 30 December 2019 from her relationship with a Vietnamese man in Hong Kong, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 June 2020 for herself and A2, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 6.By a Notice of Decision dated 23 September 2020 the Director of Immigration (“Director”) rejected the Applicants’ claims on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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 Applicants’ claims and assessed the level of risk of harm from A1’s creditor and followers upon their 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 them other than to press A1 to repay her debts or that they would have any knowledge of the existence of A2 let alone to have any intention to harm her, that in any event it was a private monetary dispute between A1 and her creditor without any official involvement that state or police protection would be available to the Applicants 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 99 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to safely move with A2 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 them. 8.On 28 September 2020 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 20 January 2022 before the Board together with A2’s lawyer from DLS during which A1 gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made by the lawyer on behalf of A2. On 22 June 2022 their appeals were dismissed by the Board which also confirmed the Director’s decision. 9.In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to leave Vietnam to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her or her daughter A2 whom the creditor did not even know her existence, that in any event even if such risk were real that it arose from some private monetary dispute between A1 and her creditor only without any official involvement that state or police protection would be available to the Applicants upon their return to Vietnam if resorted to as well as reasonable internal relocation alternatives for A1 to move safely with A2 to other parts of the country away from her home district without any risk of being located, while relevant COI also show that necessary supports and assistances from various government departments and NGOs will also be available to assist both of them to adapt to life in Vietnam, and with both parents of A2 being Vietnamese citizens that there is no other underlying matter specific to A2 for non-refoulement claim which might not have been advanced by her lawyer to the Board that both of claims of A1 and A2 for non-refoulement protection failed on all the applicable grounds. 10.On 27 September 2022 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date other than some bare assertions that the Board’s assessment of internal relocation being available to them is not feasible given the accessibility of nationwide social network to gangsters in Vietnam but without any necessary or relevant details or evidence to corroborate such bare assertions that I do not find any them reasonably arguable for their intended challenge. 11.By then the Applicants were also out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made. 12.As the last day of the three-month period for them to file their Form 86 fell on 22 September 2022, the Applicants were therefore 5 days late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393. 13.In the Applicants’ case, a delay of 5 days may not be considered as significant, for which they did not provide any explanation or reasons in their Form or in A1’s affirmation, and as the record show that the decision was sent on the same day to both A1 at her last reported address and to A2’s lawyer from DLS without being returned through undelivered post, I am unable to see any good or valid reason for their delay, but given its relative insignificance, I propose to focus on the merits of their intended application. 14.However, as noted above that the Applicants have also failed to put forward any proper ground for their intended challenge other than just some bare and uncorroborated assertions which are not reasonably arguable for their intended challenge. As such, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for or merits in their intended application either. 15.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. 16.In the Applicants’ case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in their claim even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 17.I am of course mindful of the fact that A2 is a minor at the present age of just 4 years old in her present leave application before the Court without legal representation as required by Order 80 rule 2 of the RHC, and that the Court needs to be satisfied that her non-refoulement claim had been properly considered separate from her mother’s claim by the Board having regard to her personal circumstances and that the Board had achieved high standards of fairness in dealing with her claim, while in her present application that the Court must also be satisfied that there is no underlying matter which may support minor-specific non-refoulement grounds that might not have been advanced before the Board: see Fabio Arlyn Timogan [2020] HKCA 971. 18.It is however clear that A2 did have legal representation from DLS in her appeal/petition before the Board, and that in my view the Board did conduct proper inquiry and assessment of her claim separately from that of her mother, and that in doing so it did achieve high standards of fairness in respect of her claim, nor do I find any underlying matter which may support any minor-specific non-refoulement grounds that had not been advanced by her lawyer to the Board such as any racial ethnical or religious factor specific to her case. 19.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 either of the Applicants’ claims. 20.Moreover, A1 recently on 5 February 2024 filed an affirmation requesting to withdraw their application as it is now safe for her and her daughter to return to her home country. 21.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in view of A1’s latest confirmation that it is safe for her and A2 to return to their home country, I accordingly dismiss their leave application. Dated the 26th day of March 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
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Cases cited in this judgment