Nguyen Thi Tuyet v. Torture Claims Appeal Board

HCAL 1623/2020

[2025] HKCFI 135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1623 OF 2020

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 51-year-old national of Vietnam who entered Hong Kong illegally on 21 January 2015 and was arrested by police on 23 January 2015. 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 Tien Lang District, Hai Phong City, Vietnam. After leaving school she worked as a farmer, married her husband and raised a family with 2 children in her home district.

3.In 2007 she and her husband started their own farming business with the help of a loan borrowed from a local money-lender repayable by monthly instalments with interests which they initially managed to do from their business income.

4.However, in late 2010 they lost their business after their farm was destroyed by a plague, and when they defaulted with their loan repayments in 2011, their creditor started to send men to threaten them, and after several occasions when they were beaten by those men, and on the last occasion that they were warned that next time they would be killed if they still failed to repay their loan, the Applicant and her husband then fled from their home district to hide in some relatives’ place, and on 4 December 2014 they departed Vietnam for China, and from there they later sneaked into Hong Kong, and upon her arrest by the police the Applicant then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 29 June 2019 and a Notice of Further Decision dated 30 November 2016 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 decisions 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 debts, that in any event it was a private monetary dispute between the 2 of them only 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 94 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 never sought any appeal to the Torture Claims Appeal Board (“Board”) under Section 37ZR of the Immigration Ordinance against the Director’s decisions, and instead some 3 ½ years later on 7 August 2020 she filed a Form 86 for leave to apply for judicial review of those decisions, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, nor did she request any oral hearing for her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in its decisions being clearly and properly identified by the Applicant, and in breach of the statutory and procedural requirements under Section 37ZR of the Ordinance to first appeal to the Board if she felt being aggrieved by the Director’s decisions, I do not find any legal or reasonably arguable basis for her intended challenge of those decisions.

8.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.

9.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decisions 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, and in the absence of any appeal to the Board against those decisions, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

10.Having considered both decisions of the Director 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 the part of the Director to apply high standards of fairness in his consideration and assessment of the Applicant’s claim.

11.Moreover, the Applicant on 30 September 2024 in writing requested to withdraw her application as her problem in her home country has been solved and that it is now safe for her to return to Vietnam.

12.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 3^rd day of January 2025

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