Case Document

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HCAL 755/2022

[2024] HKCFI 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 755 OF 2022

BETWEEN
	Ha Anh Duong	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 23-year-old national of Vietnam who entered Hong Kong illegally on 4 May 2021 and was arrested by police on 25 May 2021. After she was referred to the Immigration Department for investigation, 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 unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school she worked in various jobs in her home district to make her living.

3.In 2020 she started her own business selling clothes on the internet by borrowing a loan from a local money-lender with monthly interest payments until discharge of the loan, which she initially managed to do from her business income for the first few months, but as her business did not turn out to be profitable, and by April 2020 she started to default with her interest payments, for which her creditor sent men to make threats against her.

4.One day in June 2020 those men again came to her home demanding for repayment of her loan, and when she was unable to do so, they beat her with wooden sticks and also damaged her household items and furniture.

5.After another beating by her creditor’s men in July 2020 that she suffered cuts and bruises all over her body which required medical treatments, and when those men threatened to kill her next time if she still failed to repay her loan, the Applicant became fearful for her life and fled from her home to Ho Chi Minh City, and on 1 May 2021 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 19 November 2021 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 20 January 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”).

7.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 her creditor 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 102 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 young adult with working experience to move to other areas of the country away from her home district in large cities such as Da Nang or Ho Chi Minh City where she had stayed before without incidents and where it would be difficult if not impossible for her creditor to locate her.

8.On 4 February 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 10 June 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 August 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to leave her country to come to Hong Kong to seek protection, that even if the risk of her such claim were real that there was no reliable evidence of any real intention of her alleged creditor to seriously harm or kill her, and that in any event 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 her upon her return to Vietnam as well as reasonable internal relocation alternatives for her to move safely to other parts 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.

10.On 12 August 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date other than a regurgitation of her claim as before as well as some bare assertions that she could not relocate to other parts of Vietnam as her health is not good or that she is not an active person which would disadvantage her in the labour market or that her creditor has nationwide network to locate her but without providing any relevant or necessary details or particulars or evidence in support of her such bare assertions. As such I do not find any of them 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.

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 decisions that the risk of harm in her claim even 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 5 March 2024 in writing requested to withdraw her application as she wants to return to her home country but without providing any further details as to what happens to her claimed risk.

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, I refuse to grant leave and accordingly dismiss her application.

Dated the 23^rd day of April 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 23 April 2024 Ha Anh Duong Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23 April 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19893/22/2/11/V3438 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2202/21 (Formerly RBCZ 11167/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)