TRAN SAU LENH v. TORTURE CLAIMS APPEAL BOARD

HCAL 743/2018

[2020] HKCFI 2209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 743 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 61-year-old national of Vietnam who last entered Hong Kong illegally on 10 November 2015 and surrendered to the Immigration Department on the same day 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 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 Ly, Hai Phong, Vietnam.  After leaving school she ran a cooked food stall, got married and raised a family with a daughter.

3.  During the marriage her husband indulged in gambling and frequently resorted to borrowing to repay his gambling debts.  In 2006 after incurring huge gambling debts, her husband again borrowed a big loan from the local money-lender by making the Applicant as the guarantor to the loan repayable by instalments.

4.  Later in the same year when neither her husband nor herself was unable to make further repayment to the money-lender, the Applicant came to Hong Kong to look for jobs but was arrested by police and was subsequently in 2008 repatriated to Vietnam.

5.  Upon her return to Vietnam, the Applicant was forced by the money-lender to sell her family home to make part payment of the loan, but in order to earn income to repay the remaining balance, she reached an agreement with the money-lender by borrowing a further loan to again set up a cooked food stall business, and from the monthly profits she was able to repay her loan by instalments.

6.  In 2010 the Applicant divorced her husband, and continued to run her cooked food stall to repay her loan, but one day in early November 2015 the money-lender lost patience with her and decided to call in the entire loan, and threatened to kill her if she was unable to do so within 3 days.         

7.  As the Applicant did not have the means to repay the entire loan, and fearful for her life, she decided to flee Vietnam, and so on 10 November 2015 she departed for China, and from there she sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 10 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 5 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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”).

9.  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 upon her return to Vietnam as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention on the part of the money-lender to seriously harm or kill her, 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 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.

10.  By a Notice of Further Decision dated 11 October 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”).

11.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 16 August 2016, and for which she attended an oral hearing on 6 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 22 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found the Applicant’s evidence regarding her loans and repayment arrangements with the money-lender and the alleged subsequent threats from her creditor which led to her departure from Vietnam vague, inconsistent and conflicting that it did not find her to be a credible witness and concluded that she had fabricated such stories for her non-refoulement claim, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant as well as reasonable internal relocation within Vietnam 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.      

13.  On 27 April 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 that her life would be in danger if returned to Vietnam without putting forward any proper or valid ground for her intended application. As such and in the absence of any error of law or procedural unfairness in the Board’s decision being shown by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

14.  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.

15.  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 19 – 41 in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.  

16.  Furthermore, 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 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.     

17.  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.

18.  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