NGUYEN THI HUONG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2200/2018

[2020] HKCFI 1975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO. 2200 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 Applicants:

1.  The 1^st Applicant (“A1”) is a 34-year-old national of Vietnam who entered Hong Kong illegally on 1 June 2017 and was arrested by police on 6 June 2017.  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 the creditors of her former husband for failing to repay his loan, and after she gave birth to her son, the 2^nd Applicant (“A2”) on 25 September 2017 in Hong Kong, she also raised a similar claim on the same basis for him.  They were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Thuy An, Dong Trieu, Quang Ninh, Vietnam.  After leaving school she first worked as a hawker and later ran her own grocery store, and in 2015 she married her husband, but in early 2016 she demanded for a divorce and thereafter her husband just disappeared.

3.  One day in early 2017 some men came to the Applicant’s store looking for her former husband, claiming that he had failed to repay his loan borrowed from them, and when she told them that they were already divorced and that she had no idea where her former husband was, those men then demanded that she repaid the loan instead within three months or else she would be killed.

4.  After the men left, the Applicant did not report the matter to the police, and instead she closed down her store and took shelter in her mother’s home to hide from those men.

5.  One day in May 2017 those men found the Applicant in her mother’s home and demanded repayment of the loan, and when she told them she did not have any money, they slapped her and threatened to kill her the next time if she still failed to repay the loan.     

6.  Again the Applicant did not seek any assistance from the police, but as she was then pregnant with A2 from another relationship, and fearing for their own safety, she therefore departed Vietnam on 28 May 2017 for China, and from there she later sneaked into Hong Kong, and upon her arrest she raised her non-refoulement claim for protection, and after given birth to A2 she also raised a similar claim for him, for which she completed a Non-refoulement Claim Form for both of them on 22 March 2018 for joint assessment, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 13 April 2018 the Director of Immigration (“the Director”) rejected the Applicants’ claim 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the creditors of A1’s former husband upon their return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between A1’s former husband and his creditors with no evidence of any real intention on the part of those creditors to harm or kill the Applicants, that in the absence of 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 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 330,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other part of Vietnam away from her home district in large cities such as Hanoi, Móng Cái, Da Nang or Vĩnh Yên where it would be difficult if not impossible for the creditors of A1’s former husband to locate them.

9.  On 25 April 2018 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which A1 attended an oral hearing on 17 August 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 17 September 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found such inconsistencies and discrepancies in A1’s evidence as to her claim between those given to the Director and at her appeal hearing before the Board that it doubted the credibility of her claim, and found in any event that it was a private monetary dispute between her and her husband’s creditors without any official involvement that state/police protection would be available to the Applicants upon their return to Vietnam as well as reasonable internal relocation for them to move to other areas in Vietnam away from A1’s home district in large cities without any risk of being located by the creditors of A1’s former husband that their claim for non-refoulement protection failed on all applicable grounds.   

11.  On 11 October 2018 the Applicants filed their 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 their Form, and in A1’s supporting affirmation of the same date she merely repeated their claim that she and A2 would be killed by her former husband’s creditors if returned to Vietnam without putting forward any grounds for their intended application.  As such and in the absence of any error of law or procedural unfairness in their process before the Director or the Board or in their decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis 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 decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them 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.  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 Applicants’ claim.

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