PHAM THI THU HIEN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1260/2018

[2021] HKCFI 2858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1260 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 29-year-old national of Vietnam who entered Hong Kong illegally on 16 August 2015 with her husband and was arrested by police on 9 September 2015.  After she was referred to the Immigration Department for investigation, A1 raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her outstanding debts, and whilst being released on recognizance pending determination of her claim, A1 subsequently gave birth to a son, the 2^nd Applicant (“A2”) on 18 May 2016, and for whom she later also raised a non-refoulement claim on the same basis as her own claim.

2.  By a Notice of Decision dated 9 August 2016 and a Notice of Further Decision dated 22 March 2017 the Director of Immigration (“Director”) rejected A1’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”).

3.  In his decisions the Director took into account of all the relevant circumstances of A1’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her creditor and followers upon her return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to A1 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 331,000 square kilometers that it would not be unduly harsh for A1 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.

4.  On 22 August 2016 A1 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which she attended an oral hearing on 8 March 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 30 April 2018 her appeal was dismissed by the Board, and on 4 July 2018 she filed her Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision.

5.  Meanwhile on 18 May 2016 A1 gave birth to A2 from her marriage with her husband in Hong Kong, and for whom she also raised a non-refoulement claim on the same basis as her own claim, which was subsequently also rejected by the Director on 28 March 2019, while the appeal to the Board was also dismissed on 22 October 2019. 

6.  On 12 December 2019 A1 was granted leave to include A2 in her Form 86 for leave to apply for judicial review of both decisions of the Board, but no ground for seeking relief was given in their Form, and in her supporting affirmation A1 just repeated their claim of fear of harm from her creditor over her outstanding debts but without putting forth any proper ground for their intended challenge, nor did they request any oral hearing for their application.

7.  As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

8.  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.

9.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Vietnam, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

10.  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 Applicants’ claim.

11.  Furthermore, recently on 3 September 2021 the Director informed the Court of the Applicants’ written request to withdraw their application as their problem in their home country has been resolved that it is now safe for them to return to Vietnam, which they wish to do so as soon as possible. 

12.  In the premises, and as I am not satisfied for the reasons given that there is any prospect of success in the Applicants’ intended application for judicial review, and in view of the Applicants’ latest confirmation that the basis for their claim no longer exists, I accede to their request and accordingly dismiss their 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