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HCAL 1303/2018
[2021] HKCFI 1217
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1303 of 2018
BETWEEN
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Nguyen Thi Ha |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative 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 Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 59-year-old national of Vietnam who last entered Hong Kong illegally on 20 December 2015 and surrendered to the Immigration Department on 21 December 2015 when 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 Ban Sen Commune, Van Don District, Quang Ninh Province, Vietnam. After leaving school she worked as a fisherman, got married and raised a family of 3 children.
3. In 1989 she left Vietnam for China and from there she sneaked into Hong Kong to look for jobs, but was subsequently in 1992 repatriated to Vietnam where she returned to her home district to resume her work as a fisherman.
4. In November 2011 she again left Vietnam for Hong Kong to look for employments, and was similarly repatriated one month later to Vietnam.
5. Upon her return to Vietnam, she borrowed a loan from a local money-lender for her fishing business, with monthly interest payment to be paid to her creditor until repayment of her loan.
6. However, a typhoon in late 2014 destroyed her fishing business, and when she was unable to make any repayment for her loan, her creditor started to send men to threaten her, and after her house was taken away by her creditor but was not enough to repay her loan, she decided to run away from her creditor and his men by departing Vietnam in December 2015 for China, and from there she again sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
7. By a Notice of Decision dated 16 December 2016 the Director of Immigration (“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”).
8. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and his men upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on the part of her creditor to seriously harm or kill her other than putting pressure on her to repay her loan, that her problem with her creditor is 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 95 million people spread across a vast territory of more than 300,000 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.
9. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 10 April 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 15 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
10. In its decision the Board accepted the Applicant’s claim of threats from her creditor over her failure to repay her loan but found in the absence of any official involvement that state/police protection would be available to her 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-refoulmeenbnt protection failed on all applicable grounds.
11. On 6 July 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 she would be harmed or killed by her creditor if returned to Vietnam but without putting forward 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.
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 or irrationality 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.
Dated the 4th day of May 2021.
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(Allen LEE)
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 his 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 4th May 2021
Nguyen Thi Ha
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 4th May 2021
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 5666/16/12/313/V790
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2549/16 (Formerly RBCZ 10396/16)[T4S53]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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