Vu Thi Thu Trang v. Torture Claims Appeal Board

HCAL 1676/2024

[2025] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1676 OF 2024

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Vietnam who entered Hong Kong illegally on 19 December 2020 and was arrested by police on 26 December 2020. 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 Thanh Mien District, Hai Durang Province, Vietnam. After leaving school she worked in the factory, got married and raised a family with a daughter in her home district.

3.In June 2020 she started her own business importing face masks for the prevention of the then Covid-19 disease with the help of a loan borrowed from a local money-lender with monthly interest payments, but later she lost her business due to delays in delivery of the face marks caused by the manufacturer, and when she started defaulting with her loan repayments, her creditor sent men to threaten her, and after being severely beaten by those men on one occasion in November 2020, the Applicant fled from her home to hide in a friend’s place.

4.Later when she heard that her creditor had sent men looking for her everywhere, the Applicant became fearful for her life and therefore departed Vietnam on 12 December 2020 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 12 January 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 27 April 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”).

6.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 them 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 her and her creditor 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 102 million people spread across a vast territory of more than 310,000 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.On 22 March 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as her Notice of Appeal was filed outside the 14-day period after notice of the decision had been given to her as required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal by taking account of the statement of reasons stated in the application for late filing of the Notice of Appeal and the evidence in support, and by a Decision dated 12 June 2024 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

8.In its decision the Board applied the law under Section 37ZT (2) and (3) of the Ordinance as amended on 1 August 2021 and found that the Director’s decision had been properly served on the Applicant via her then lawyer from DLS on 28 April 2022, that the deadline for her to file her Notice of Appeal was therefore 12 May 2022, that her Notice of Appeal was only filed more than 1 year 10 months later on 22 March 2024, that such delay was very substantial, that the reason stated in her application that she was on 25 October 2023 sentenced to 3 months’ imprisonment even if true was already more than 1 year and 5 months after the deadline and cannot be accepted as any valid excuse or justification for her such serious delay, nor can her explanation of her inability to speak English or Chinese be accepted as any valid reason for the delay, and that there was no evidence to satisfy the Board that the Applicant had exercised all due diligence to file her Notice of Appeal within the required period or that her failure to do so was due to any circumstances beyond her control.

9.On 26 September 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Director and the Adjudicator reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from the killings that she may face if deported back to her home country;

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

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

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s 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 Director failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

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

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

10.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her 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 in refusing the late filing of her Notice of Appeal, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI in his assessment and determination of her non-refoulement claim or what relevancy were state acquiescence to the Applicant’s claim when on the factual basis of even her own case that it was a private monetary dispute between her and her 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 Applicant, I do not find any of them reasonably arguable for her intended challenge.

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 Board refused to allow the late filing of her Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision by properly and correctly applying the law under Section 37ZT (2) and (3) of the Immigration Ordinance as amended in its consideration of the Applicant’s statement of reasons for her application and the evidence in support, and that in the absence of any error of law or procedural unfairness in the process by the Board or in its decision being clearly and properly identified by the Applicant who also failed to attend the hearing of her application without any explanation, I do not find any reasonably arguable basis to challenge the findings of the Board.

13.Furthermore, the fact is that it has also been correctly established earlier by the Director in his decision that the risk of harm in the Applicant’s non-refoulement 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.

14.In the premises, and 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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s decision to refuse the late filing of her appeal.

15.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 4^th day of February 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