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HCAL 1483/2018
[2020] HKCFI 2281
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1483 of 2018
BETWEEN
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Nguyen Thi Hong |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 34-year-old national of Vietnam who entered Hong Kong illegally on 17 April 2014 and was arrested by police on 20 April 2014. After she was referred to the Immigration Department for investigation, 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 Ha Long City, Quang Ninh Province, Vietnam. After leaving school she worked in a restaurant, and in 2011 she and her boyfriend started a pawn shop business in her home district.
3. In 2012 she and her boyfriend decided to expend their business by borrowing a loan from a local loan shark repayable by monthly instalments with interest charged on the loan.
4. However, in early 2013 they suffered heavy business losses and had difficulties making their loan repayments, and the loan shark started to send his followers to their shop to make threats against them and to break and damage things in their shop.
5. As a result her boyfriend ran away and disappeared, and when the loan shark threatened to kill her, the Applicant then fled to Ha Long City to hide in a friend’s place, but when she heard that her creditor and his men were looking for her everywhere, she therefore departed Vietnam in late April 2013 for China, and from there she sneaked into Hong Kong, but soon she was arrested by police and was repatriated to Vietnam where she took shelter in her sister’s place.
6. Soon she heard that her creditor was still looking for her, the Applicant therefore on 14 April 2014 departed Vietnam again 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 on 13 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 9 November 2016 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”).
8. 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 there will be any real risk of her being harmed or killed by her creditor or his men upon her return to Vietnam due to low intensity and frequency of past ill-treatment from them, that her problem with her creditor was a private 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 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 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. On 22 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but for which she failed to attend the scheduled hearing without any explanation, and in the absence of any response from her to its invitation to submit additional evidence or to request another oral hearing, the Board proceeded to deal with her appeal in her absence and on paper. On 3 July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
10. In its decision the Board found on the basis of the available materials and information before it and in the absence of the Applicant due to her unexplained failure to attend her appeal hearing so as to give evidence and to answer queries it intended to raise of her claim that it was not satisfied that she would face any real risk of harm from her creditor upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.
11. On 27 July 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 in her supporting affirmation of the same date she merely repeated her claim that her life would be in danger upon return to Vietnam but without putting forward any proper grounds 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29 – 38 of its decision in the absence of any oral evidence or answers to questions raised of her claim due to her failure to attend her appeal hearing, 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 finding of the Board.
14. Furthermore, the fact is that it has been established by the Director in his 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.
Dated the 15th day of September 2020.
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(NG Hang-yin)
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 15th September 2020
Nguyen Thi Hong
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 15th September 2020
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 5273/16/11/212/V633
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1357/16 [T6S78]
(formerly RBCZ/3002164/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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