NGUYEN THI HONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1582/2019

[2024] HKCFI 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1582 OF 2019

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 58-year-old national of Vietnam who had previously repeatedly entered Hong Kong illegally and was subsequently arrested, sent to prison and then repatriated to her home country again did so on 6 February 2014, and more than 4 months later on 12 June 2014 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by the local police for her involvement in the villagers’ protests against the government’s reclamation of their lands in her home village. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Guangning, Vietnam. After leaving school she ran a grocery shop and later farmed in her parents’ farmland in her home village, got married and raised a family with a daughter but later divorced her husband.

3.  In 2012 the Vietnamese government decided to reclaim the land of her home village for re-development and offered compensations to the affected villagers including the Applicant but which they considered as insufficient, and therefore mounted protests by camping out on the reclaimed lands with posters and banners demanding for bigger compensations.

4.  After the government’s demands for them to vacate the land were ignored by the villagers, police were sent in on 21 December 2012 to drive the villagers away which turned into a violent confrontation that some of the protesters including the Applicant were struck by police batons, but the Applicant subsequently managed to escape from the scene without serious injuries, and then fled from the village to take shelter in a friend’s place in Mong Cai.

5.  However, when she later heard that some of the villagers had been arrested by the police for taking part in the protest, she feared that she would also be arrested and therefore in January 2013 departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her subsequent surrender to the Immigration Department she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 8 February 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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 the local police 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 that she was being pursued by the police or that there was any adverse interest in her by the authorities prior to her departure of the country that it is not accepted that she would face any risk of being harmed by the police or the authority, and that even if she were to be arrested by the authorities for participating in the protest upon her return to Vietnam that according to relevant Country of Origin Information (“COI”) that proper state protection would be available to her from any abuse or torture that it is not accepted that she would face any risk of being harmed or killed by the authorities for such a relatively minor offence or that she would not be entitled to due process and proper legal representation to defend any such prosecution in a proper trial under the current system in Vietnam, and that reasonable internal relocation alternatives are also available in Vietnam with a large population of 95 million people spread across a vast territory of more than 331,000 square kilometer 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 village in large cities such as Ho Chi Minh City where it would be difficult if not impossible for anyone to locate her.

8.  On 16 February 2017 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 11 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 5 June 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted her claim of fear of harm from the Vietnamese police or authorities over her protest against the government’s reclamation of local police that caused her to leave her home country to come to Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until about 4 months later when she surrendered to the Immigration Department, that over 4 years has elapsed since she left the country that there is no evidence or indication that the local police would still have any adverse interest in her over such a minor matter that she would face any risk of being arrested or persecuted by the authorities upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 11 June 2019, the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she put in some totally different claim of fear of being harmed by her creditor which is wholly irrelevant to her original claim and without putting forth any proper ground for her intended challenge, 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 Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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 where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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 rejected her claim essentially on its adverse findings against her case for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 44 of its decision with the benefit of hearing her in her oral evidence and answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, 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 by both the Director and the Board in their decisions that the risk of harm in the Applicant’s 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 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 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