NGUYEN THI HOA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2528/2018

[2021] HKCFI 2301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2528 of 2018

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 (counsel for) 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 49-year-old national of Vietnam who last entered Hong Kong illegally sometime in July 2014 and was arrested by police on 24 September 2014 for which she was subsequently charged, convicted and sentenced to prison for 22 months. After she was discharged from prison and was referred to the Immigration Department for deportation, 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 her claim.

2.  The Applicant was born and raised in Quang Ninh Province, Vietnam. After leaving school she worked in casual jobs, and in 1991 travelled to Hong Kong by boat with others as refugees but was subsequently repatriated to Vietnam in 1996.

3.  After two further attempts to enter Hong Kong illegally in the late 1990s which ended in arrest and imprisonment before repatriation, the Applicant settled down in Cam Thuy where she owned a piece of land inherited from her parents, and on which she ran a chicken farm to make her living.

4.  In 2012 for expending her business she borrowed a loan from a local loan shark with monthly interest payments, but after a bird flu had wiped out her chicken stocks in January 2013, the Applicant started to have difficulty making her loan repayments, and although she was able to obtain further extensions of payments from her creditor, by March 2014 she was still unable to repay her loan, and after her house was seized by her creditor and she was beaten by men sent by her creditor, the Applicant became fearful for her life and fled to Cua Ong Port and then to Mong Cai, and from there she departed Vietnam in June 2014 for China, and later she sneaked into Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 November 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 15 February 2016 the Director of Immigration (“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 Ordinance, Cap 383 (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found inconsistencies and implausibility in her account of claimed fear of threats from her creditor that the credibility of her claim was doubted as genuine, that even if true that the level of risk of harm from her creditor and his followers upon her return to Vietnam was considered as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private monetary dispute between them 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 working 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 her creditor to locate her.

7.  By a Notice of Further Decision dated 27 June 2017 the Director again rejected the Applicant’s claim in the absence of any additional facts which may be 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”) and upon finding that she had failed to establish a personal and real risk of her such absolute and non-derogable rights including right to life under BOR 2 being violated upon her return to Vietnam.

8.  By then the Applicant was in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 22 February 2016, and for which she attended an oral hearing on 23 August 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 8 November 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found inconsistencies and implausibility in the Applicant’s evidence that it considered her account of being indebted to her creditor and threats made against her as not credible, and that in any event in the absence of any evidence of official involvement in their private monetary dispute 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 creditor that her claim for non-refoulement protection failed on all applicable grounds.   

10.  On 12 November 2018 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 merely repeated her claim that if refouled to Vietnam she would be harmed or killed by her creditor but 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 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.

12.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 49 of its decision with the benefit of hearing her in her oral evidence and her 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.  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