Case Document

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HCAL 649/2023

[2024] HKCFI 1831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 649 OF 2023

BETWEEN
	Vu Thi Ngoc	1^st Applicant
	Hoang Van Quan	2^nd 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 1^st and 2^nd Applicants’ application for leave to apply for judicial

review be dismissed.

Observations for the Applicants:

1.The Applicants are a married couple and nationals of Vietnam in their late 20s and early 30s who entered Hong Kong illegally on 26 July 2021, and were arrested by police in late October 2021. After they were referred to the Immigration Department for investigation, they jointly raised their non-refoulement claims for protection on the basis that if they returned to Vietnam they would be harmed or killed by their creditor over their unpaid debts. They were subsequently released on recognizance pending the determination of their claim.

2.Both Applicants were born and raised in Quang Ninh, Vietnam, with the 1^stApplicant (“A1”) being a farmer while the 2^nd Applicant (“A2”) worked as a fisherman in their home district.

3.In 2019 they got married and decided to run a restaurant in their home district with the help of a loan borrowed from a local money-lender to be repaid within 4 or 5 years, and with monthly interest payments which the Applicants initially managed to make from their restaurant income.

4.However, by end of 2020 they defaulted on their monthly interest payments as their restaurant business had been badly hit by the COVID-19 pandemic, and in January 2021 their creditor started to send men to threaten them, and on several occasions they were beaten by those men, and on the last one they were warned by those men that if next time they were still unable to repay their loan, they would be killed.

5.The Applicants therefore became fearful for their lives and fled to hide in the home of A1’s parents, and on 23 July 2021 they departed Vietnam for China, and from there they later sneaked into Hong Kong, and upon their subsequent arrest by the police they then raised their non-refoulement claim for protection, for which they completed their Non-refoulement Claim Form (“NCF”) and jointly attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 17 May 2022 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 their 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 either of them other than to press them to repay their debts, that in any event it was a private monetary dispute between them and their creditor only 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 98 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for both Applicants as an able-bodied adults with working experience to move to other areas of the country away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for their creditor to locate them.

8.On 25 May 2022 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 18 April 2023 before the Board during which both gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 21 April 2023 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 the Applicants’ evidence that it doubted the credibility of their claim of fear of harm from their creditor that caused them to leave Vietnam to come to Hong Kong to seek protection, that even if their account of dispute with their creditor over their unpaid debts were true that there was no reliable evidence of any real intention of their creditor to seriously harm or kill them other than to press them to repay their debts, and that in any event it was a private monetary dispute between them and their creditor without any official involvement that state or police protection would be available to the Applicants upon their return to Vietnam as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from their home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.

10.On 4 May 2023 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1) That the Board reached the decision wrongly in assessing their non-refoulement claims as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that their lives must be protected by the criminal law from the killings that they may face if deported back to their home country;

(2) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in their case which led to an unfair outcome of rejecting their claims;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicants’ personal background and experience in assessing their claims;

(4) That the Board had listed relevant COI which supported the Applicants’ aversions that the police in their country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicants’ case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicants’ argument that corruption and incompetency of the administration in their home country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicants’ assertions;

(6) That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicants’ explanations and unreasonably required them to respond to questions that they were not in a position to offer any response; and

(7) That the Adjudicator made a ruling to dismiss the Applicants’ appeals based on findings which the Adjudicator ought to allow and thus the decision was irrational.

11.These are however all just bare and vague assertions of the Applicants containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to their 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 procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence to the Applicants’ case when on the factual basis of even their own case that it was a private monetary dispute between them and their creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenge.

12.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.

13.In the Applicants’ 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 their claims if real is a localized one and that it is not unreasonable or unsafe for they 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.

14.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 Applicants’ claims.

15.Moreover, the Applicants recently on 16 May 2024 filed an affirmation requesting to withdraw their application as it is now safe for them to return to Vietnam.

16.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 their latest confirmation that it is safe for them to return to their home country, I accordingly dismiss their leave application.

Dated the 23^rd day of July 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 July 2024 Vu Thi Ngoc Hoang Van Quan 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 July 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 20327, USM 20328 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2855/21 (formerly RBCZ/5000332/21), QA T/C 2446/21 (formerly RBCZ/5000333/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)