VU THI HUYNH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1296/2018

[2021] HKCFI 1210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1296 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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 63-year-old national of Vietnam who last entered Hong Kong illegally on 22 April 2015 and was arrested by police on 24 April 2015, for which she was subsequently convicted and sentenced to prison for 15 months, during which 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. 

2.  The Applicant was born and raised in Haiyang City, Thanh Ha County, Vietnam. After leaving school she married her husband and raised a family of 3 children by working as a farmer in her home district.

3.  In 2007 she travelled to Hong Kong where she overstayed and was arrested by police on 7 September 2011 for which she was subsequently convicted and sentenced to prison for 12 weeks before being repatriated in January 2012 to Vietnam.

4.  Upon returning to Vietnam, she and her husband started a livestock business in 2014 by borrowing a loan from a local money-lender with monthly interest payable until full payment of the loan by the end of the year.

5.  However, the Applicant and her husband subsequently lost their business after a plague had wiped out their livestock, and when they were unable to repay their loan, their creditor started to send men to threaten them, and to avoid such threats, the Applicant fled from her home to take shelter at her brother’s place, but when she heard that her creditor was looking for her everywhere, she therefore departed Vietnam in April 2015 for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 1 September 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  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 low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to cause her any serious harm other than to force her to repay her loan, that 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 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.

8.  By a Notice of Further Decision dated 22 August 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 7 September 2016, and for which she attended an oral hearing on 4 April 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 14 May 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found significant inconsistencies, discrepancies and contradictions in the Applicant’s evidence as to the main core of her claim that it doubted her alleged loan and threats from her creditor that it rejected her claim of fear of harm if returned to Vietnam, and found in any event 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-refoulement 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 of fear of being 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 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.

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