LUU THI THU HUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 892/2018

[2020] HKCFI 2331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 892 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 28-year-old national of Vietnam who entered Hong Kong illegally on 12 July 2015 and surrendered to the Immigration Department on the next day when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her parents’ creditor over their loan dispute.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Nam Son Commune, An Duong District, Hai Phong City, Vietnam.  After leaving school she remained living with her parents and worked in a company in Hai Phong.

3.  In 2014 her parents borrowed a loan from a local loan shark for their seafood business by putting up their house as security for the loan.

4.  Due to poor profit her parents in early 2015 closed down their business, and when they were unable to repay their loan, the loan shark sent his men to beat her parents and confiscated their house, so that the Applicant and her brothers moved to stay at their uncle’s place while her parents had gone elsewhere, but when the loan shark later found the Applicant and her brothers and demanded that they disclosed their parents’ whereabouts as the house was not enough to pay off the loan, and threatened to kill them if their parents still failed to pay off the remaining balance of their loan.

5.  Fearing for her life, the Applicant on 7 July 2015 departed Vietnam for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 27 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 24 May 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 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her parents’ creditor upon her return to Vietnam due to the absence of any past ill-treatment from the loan shark or his men, that it was a private loan dispute between her parents and their creditor 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 95 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 young adult with working experience to move to other part of Vietnam away from her home district in large cities such as Ho Chi Ming City where it would be difficult if not impossible for her parents’ creditor to locate her.

8.  On 1 June 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 9 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 15 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of threats from her parents’ creditor over their loan but found in the absence of any official involvement that state/police protection would be available to the Applicant upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her parents’ creditor that her claim for non-refoulement protection failed on all applicable grounds.  

10.  On 21 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) that the Board assessed the Applicant’s claim without knowing the real situation in Vietnam that loan sharks and gangsters would use very cruel and violent torture to enforce repayments of loans and that it was wrong to find that she would not face such risk if refouled to Vietnam;

(2) that the adjudicator failed to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim; and

(3) that the adjudicator was not clear about the situation in Vietnam and failed to consider the relevant COI that corruptions were serious and that the police were unable to protect its citizens from the threats from loan sharks and gangsters which led to groundless speculations that the Applicant would not face such risk or that proper state or police protection would be available to her.  

11.  These are however mainly just board and vague assertions of the Applicant without particulars or specifics or elaborations as to how they applied to the Board’s decision or how the adjudicator had erred in the decision, when it is clear from the decision that the adjudicator did properly and correctly take into consideration of the relevant COI as to those issues raised by the Applicant in Vietnam including corruptions [55] – [62], police efficiency [63] – [66], judicial procedures and remedies [52] – [54] and in particularly measures taken against loan sharking [67] – [72] in the Board’s decision, of which I have carefully examined and do not find any basis or merits in any of the complaints of the Applicant.  As such 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 for her 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 Applicant’s 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 her 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

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