PHAM THI HUE v. TORTURE CLAIMS APPEAL BOARD

HCAL 1467/2019

[2024] HKCFI 411

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1467 OF 2019

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 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 43-year-old national of Vietnam who entered Hong Kong illegally on 2 August 2015 and surrendered to the Immigration Department on 6 August 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 lender over her unpaid debts.  

2.  The Applicant was born and raised in Hai Phong, Vietnam. After leaving school she worked as farmer, fisherman and seamstress, got married with her husband and raised a family with 2 sons in her home village.

3.  In 2013, the Applicant borrowed a sum of money with interest payable monthly from a local lender intending to buy a fishing boat and related machinery which also acted as the collateral. However, in October 2013 her fishing boat was sunk in a storm. She lost her livelihood and started to default her repayments.  Since November 2013, the Applicant’s lender and his followers repeatedly came to her home to demand payment but when the Applicant was unable to do so, on 3 January 2014 she was tied up at her home, beaten and raped by the debt collectors.

4.  Fearing for her safety, on 5 January 2014 the Applicant fled to Mong Cai and from there she departed Vietnam for China and stayed there for more than 1 year before sneaking into Hong Kong on 2 August 2015 and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 25 January 2017 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”).

6.  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 lender and followers upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her loan, 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 areas of the country away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her lender to locate her.

7.  On 7 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing with the assistance of an interpreter on 27 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 24 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found that the Applicant’s evidence to be unbelievable that her presence and response to the Board was not consistent with a person who had suffered the claimed ordeal committed by her lender and followers, that the delay in her raising a claim for protection in Hong Kong after staying and working in Shenzhen for more than a year undermines the genuineness of her claim, and 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 upon her return to Vietnam as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 30 May 2019 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 just repeated her claim and stated that she is insolvent and her life is still in danger from her lender if refouled to Vietnam but without providing any further details or particulars or elaboration, 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.

10.  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.

11.  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 if real 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.                 

12.  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.

13.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I 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