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HCAL 1276 /2021
[2022] HKCFI 301
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1276 of 2021
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Mau Thi Chin |
Applicant |
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Torture Claims Appeal Board / |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant last entered Hong Kong on 8/6/2020 illegally. She was arrested on 20/6/2020. On 2/7/2020, she raised the non-refoulement claim in this case.[1]
Background
2. The applicant was born on 9/2/1982 in Hai Phong City, North Vietnam. She was separated with 4 sons who were in Vietnam. She did not know the whereabouts of her husband. She had education for about 10 years. She last worked in her husband’s business selling clothing apparel and accessories from 2013 to 2015.
3. The applicant claimed that she could not safely go back to Vietnam because of threats from her creditor (Long). Long was a leader of a triad society. She and her husband borrowed VND[2] 700 million from Long around May 2014. They had to repay VND 30 million per month and the principal be repaid in full in May 2016. They signed a loan agreement but did not keep a copy.
4. About May 2015, their goods were confiscated by customs officers. They lost about VND 500 million on 2 occasions. In October 2015, they could not pay the monthly instalment. In December, they were beaten up by Long and his men. Long threatened to kill her and kidnap her children. The whole family went to China and then to Hong Kong. Their non-refoulement claims were rejected in 2016. Her husband and sons were removed to Vietnam in 2017. The applicant was removed to Vietnam in 2018.[3]
5. After she returned to Vietnam, she learned from her parents that Long was still looking for her. Long threatened to kill her. The family had to hide and finally moved to Nho Quan, a remote village in Ninh Binh province. She dared not register with the local police for a temporary stay. Life was difficult in Nho Quan. Her wages was not sufficient to support her family. There were constant arguments with her husband. They separated in June 2019. Her husband left and never returned. She did not report to the police about Long. They were corrupt. She could not relocate as Long would be able to locate her.
6. Nothing happened to the applicant’s family in Nho Quan but the applicant was in constant fear of being located by Long. She therefore left the country and fled to Hong Kong again.
The Decision of the Director
7. The Director dismissed her claim on 30/11/2020. The Director found that there was no real risk of harm to the applicant. The reasons were as follows:
i. She could visit her parents without any problem. Long did not assault her mother. There was no evidence that Long had been stalking on her.
ii. She chose to return to another part of Hai Phong and lived with her family. She even worked as a part time maid. She had not moved elsewhere to avoid Long.
iii. She and her family were safe in Nho Quan. Her children were safe with her cousin. Long could not locate her. This indicated Long was not that resourceful as she asserted. Long’s influence was localized.
iv. The Director pointed out that the Vietnam government did not implement the law effectively. There were corruption and abuse of power. Public officials and the police had violated the law with impunity. There were serious problems with illegal money lending. Despite these problems, there was an established police force. Special units were set up to tackle loan sharks. The new Anti-Corruption law required senior state officials, police and military officers to declare their income and assets. There were news reports that public officials were punished for corruption. Government hotlines were established to receive complaints against corruption. The Director found that there was reasonable State protection.
v. Internal relocation was permissible under the law in Vietnam which was a large country with a population of about 98 million. The applicant had education for 10 years. She had worked for 14 years. It was not unduly harsh for the applicant to relocate to Ho Chi Minh City and Hanoi.
The Decision of the Board
8. The applicant appealed against the Director’s Decision. She gave evidence at the oral hearing on 5/8/2021. The adjudicator explained to the applicant that the TCAB might consider any findings of credibility or fact made in relation to her previous torture claim.[4] The adjudicator indicated that he had read the previous TCAB decision in 2017. The adjudicator indicated that the basis of her claim was substantially the same as the previous one.
9. The adjudicator dismissed the appeal on 18/8/2021. He concluded that there was no real risk of harm. The applicant failed to establish that she was indebted to Long in such an amount. The reasons were:[5]
i. The applicant and her husband was able to raise a huge loan without security. It was unreasonable that a loan shark would not ask for collateral. Given that the applicant could only earn VND 8 million monthly profit, it would be too risky for the loan shark to lend VND 700 million to her.
ii. The applicant told the adjudicator that they barely made ends meet. However, in the previous claim the applicant stated that they had VND 200 million savings. The adjudicator researched on minimum wages in Vietnam in 2013 and found out that her savings amount to about 7 years of wages. Her financial situation was not struggling at all.
iii. The adjudicator pointed out that given the terms of the loan, the applicant had to make a monthly profit of VND 59 million. This was the total of VND 30 million monthly instalment and VND 29 million monthly provision for the principal which would be payable in 24 months. There was no evidence that the business had expanded to cater for this scale.
iv. The applicant left Vietnam again 2 years after she returned home in 2018. She took no effort to locate some documentary proof of the loan or her business. She was not leaving in a hurry, yet she produced nothing to substantiate her claim.
v. The government was kin to tackle illegal money lending with some success. The applicant however chose not to report to the police. The adjudicator found this unconvincing.
vi. The adjudicator found that there were reasonable options for relocation given Vietnam was large with 96 million people. Hanoi and Saigon were options. It would be difficult for Long to trace her.
Judicial Review
10. The applicant filed the leave application on 10/9/2021. She maintained that her life would be in danger if refouled. She disagreed with the TCAB decision.
11. In judicial review, it is the duty of the TCAB to ascertain the facts and assess credibility. This court seldom interferes.
12. The adjudicator had set out the legal principles in detail. He had considered the evidence thoroughly. The implausibility of the huge loan was obvious. The adjudicator was justified in rejecting the evidence. I agree with the decision of the adjudicator. There is no error of law or procedure.
Conclusion
13. In my judgment, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated 26th day of January 2022.
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 26 January 2022
Mau Thi Chin
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 26 January 2022
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17644/21/2/60/V2741
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 579/20
(formerly RBCZ 10523/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The applicant, her husband and 3 sons had sneaked into Hong Kong on 31/1/2016. Their claims on all grounds were rejected on 25/8/2016 and 22/12/2016. The appeal was dismissed by TCAB on 13/7/2017. Eventually, her husband and 3 sons were removed to Vietnam on 12/12/2017. The applicant was removed to Vietnam on 17/7/2018 as she was imprisoned for 8 months for illegal remaining in Hong Kong. See TCAB decision dated 18/8/2021, §6.
[2] VND=Vietnamese Dong.
[3] She was sentenced to imprisonment for 8 months for illegal remaining in Hong Kong.
[4] Section 37ZP(3), Immigration Ordinance.
[5] The TCAB decision dated 18/8/2021, §§71—94.
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