VU THI HUYEN v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 565/2018

[2019] HKCFI 2550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 565 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 48-year-old national of Vietnam who last entered Hong Kong illegally on 6 June 2014 and surrendered to the Immigration Department on 25 August 2014 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her husband’s creditor for failing to repay his loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Bàng La, Đồ Sơn, Hải Phòng, Vietnam.  After leaving school she married her husband in 1993 who was a fisherman and assisted him in selling his catch in their village and raising their two daughters.

3.  In 2002 her husband borrowed a loan from his friend from the same village repayable by instalments with interest for purchasing a bigger fishing boat, but several days after her husband had bought the boat and set sail for the sea for his work, there was an accident that the boat sank and her husband perished together with his crew.

4.  After her husband’s death, his friend in 2003 came to ask the Applicant for repayment of his loan, but was prepared to waive the interest and to give her time to find the money. As a result the Applicant went to work in various places but they were all of limited pay that she was unable to save up much to repay her husband’s friend, and so she later went to work in Taiwan as a foreign domestic helper between 2004 and 2007 but was still unable to earn enough to make any loan repayment after spending it on maintaining her daughters in Vietnam.

5.  In 2007 she returned to Vietnam and did not encounter her husband’s creditor, but as she was concerned that she may eventually be located by the creditor, she decided to leave Vietnam again, which she did in 2010 when she departed for China, and from there she sneaked into Hong Kong where she was subsequently arrested by police and was repatriated to Vietnam in March 2010.

6.  Upon her return to her home in Vietnam and still she did not encounter her husband’s creditor, but in order to avoid being located or pursued by him over repayment of the loan,the Applicant in 2014 left Vietnam again for China, and from there she later sneaked into Hong Kong in June 2014, and upon her subsequent surrender to the Immigration Department,she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 20 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 14 June 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”),risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in dangerof being harmed or killed by her husband’s creditor upon her return to Vietnam due to the absence of past ill-treatment from him, that there is no reliable evidence to suggest any intention on his part to harm or kill her, that after all these years that it is doubtful that he would still have any adverse interest in her, that in any event that it was a private personal monetary dispute 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 94 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 Ho Chi Minh City where it would be difficult if not impossible for the creditor to locate her.

9.  By a Notice of Further Decision dated 22 March 2017 the Director again rejected the Applicant’s claim upon receiving and considering the further submissions from her relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 21 June 2016, and for which she attended an oral hearing on 24 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 5 January 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found the Applicant’s evidence about the loan which her deceased husband borrowed from his friend not credible, but even if it were true that there is no evidence of any harm or ill-treatment from the creditor or that such ill-treatment had attained the minimum level of severity under any of the applicable risks, and that with state protection and reasonable internal relocation available within Vietnam that it would not be unreasonable or unduly harsh for the Applicant in her circumstances to move to other parts of Vietnam such as Ho Chi Minh City where it would be difficult if not impossible for the creditor to locate the Applicant that her claim for non-refoulement protection failed on all applicable grounds. 

12.  On 6 April 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 no supporting affirmation was filed by her either.  In the absence of any error of law or procedural unfairness in her process before the Director or the Board or in the decisions being shown by the Applicant, I do not find any reasonably arguable ground or basis for her intended challenge.  

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does notoperate as a rehearing of a non-refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department or 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. 

14.  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.

15.  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.

16.  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