VU THI SUU v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1193/2018

[2020] HKCFI 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1193 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 58-year-old national of Vietnam who entered Hong Kong illegally on 2 September 2014 and was arrested by police on the same day.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Khoi Nghia Lang, Haiphong City, Vietnam. After leaving school she worked as a hawker and various other jobs, married her husband who was a communist party member, and raised two children who are now both adults.

3.  After her husband retired from his government civil service, he planned to work as a fisherman by purchasing a fishing boat, for which the Applicant borrowed a loan from a local money-lender repayable by monthly instalments with interest.

4.  However, the boat sank during a storm on 3 August 2014, and on 20 August 2014 while the Applicant was not at home, the money-lender sent some men to her home to demand for payment of the loan, and when they could not find the Applicant, they beat up her husband and damaged their household items and furniture.

5.  After the incident the Applicant feared for her life, and fled to take shelter at her sister’s home, but several days later those men from her creditor came to her sister’s home looking for the Applicant who managed to escape and fled to her brother’s place, and on 1 September 2014 she departed for China, and later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 18 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 29 December 2017 the Director of Immigration (“the 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 (“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 upon her return to Vietnam as low due to the absence or low intensity and frequency of past ill‑treatment from her creditor, that it was a private monetary dispute without any official involvement that state or police protection would be available to the Applicant if resorted to in particular when her husband was a communist member, 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 96 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 work experience to move to other part of Vietnam away from her home district in large cities such as Hanoi or Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.

8.  On 11 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which the Board did not find necessary to arrange an oral hearing, and proceeded to deal with her appeal on papers and in her absence.  On 8 June 2018 the Board dismissed her appeal and confirmed the Director’s decision.

9.  In its decision the Board did not take issue with the Applicant’s account of events occurred in Vietnam prior to her departure and hence did not require any oral hearing,but found her dispute with her creditor over her loan a private monetary matter without any official involvement that state/police protection would be available to the Applicant in particular when her husband was a communist member and to which she accepted that state protection would be readily available, and that in any event with reasonable internal relocation available for the Applicant to move safely away from her home district to other part of Vietnam where it would be difficult if not impossible for her creditor to locate her that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 25 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that her life would be in danger if refouled to Vietnam, and that the Director or the Board failed to properly consider the difficulties she would face or the serious corruptions in Vietnam but without providing any particulars or specifics or elaborations how they failed to do so.

11.  Given the fact that even on her own case that state protection would be readily available to her husband as a communist member and to her as his spouse, I do not find her complaint of corruptions in Vietnam of any relevancy to her claim or reasonably arguable for her intended challenge, and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant with sufficient particularity,I do not find any reasonably arguable basis for her to challenge their findings.

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.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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 their consideration and assessment of the Applicant’s claim.

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

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