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HCAL 395/2019
[2022] HKCFI 1134
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 395 of 2019
BETWEEN
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Hoang Ngoc Anh |
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 58-year-old national of Vietnam who entered Hong Kong illegally on 28 May 2015 and surrendered to the Immigration Department on 11 June 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 over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Haiphong, Vietnam. After leaving school she first worked as a farmer and then in the garment factory, while remaining single and living with her parents in her home village.
3. In 2010 she borrowed a loan from a local money lender for her mother’s medical expenses, with interest payable every month until full discharge of the loan.
4. However, in 2011 when she started to have difficulty making her loan repayment, her creditor sent her men to threaten her, and after being beaten by those men on one occasion that she suffered cuts and bruises all over her body, the Applicant became fearful for her life and fled to a neighboring village to take shelter in a friend’s place.
5. In mid-2015 she then moved to Mong Cai and later departed Vietnam for China, and from there she sneaked into Hong Kong, and on 11 June 2015 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 14 July 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”).
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 or the creditor’s 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 reliable evidence of any real intention of them to seriously harm or kill her other than to put pressure on 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 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.
8. On 24 July 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 on 11 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 May 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board accepted the Applicant’s claim of fear of threats from her creditor over her outstanding debts, but found that it was a private monetary dispute between them without 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 safely move to other areas 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.
10. However, even before the Board delivered its decision, the Applicant already 3 months earlier on 12 February 2019 filed her Form 86 for leave to apply for judicial review of the Board’s decision which she dated 11 January 2019 which was the same day as noted above that she attended her appeal hearing before the Board, and perhaps naturally no ground for seeking relief was then given in her Form, while in her supporting affirmation of the same date she just repeated her claim of fear of harm from her creditor as before, but notwithstanding after the Board had subsequently handed down its decision and an invitation from the Court for her to put forward her written submissions for her application, the Applicant failed to do so or put forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.
11. 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 decisions 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.
Dated the 21st day of April 2022.
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(K.H. LI)
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 21 April 2022
Hoang Ngoc Anh
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 21 April 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 7885/17/7/266/V1551
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1232/17 (formerly RBCZ 13431/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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