TRUONG THI LUA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1121/2021

[2022] HKCFI 1222

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1121 of 2021

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 39-year-old national of Vietnam who entered Hong Kong illegally on 2 November 2016 and was arrested by police on the same day. After she was referred to the Immigration Department for investigation, 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 his claim.

2.  The Applicant was born and raised in Xa Hien Thanh, Kinh Mon, Hai Duong, Vietnam, and later moved with her family to Phuong Cao Thang, Ha Long, Quang Ninh, Vietnam.

3.  After leaving school, she married her husband and raised a family with 2 children in her home district.

4.  In 2015 she started a business with her husband in repairing motorcycles and selling their parts and accessories by borrowing a loan from a local money lender with interest on the capital payable every month until full payment of the loan.

5.  However, in 2016 she was forced to close down the business after their goods were confiscated by the Custom Office over some import tax problem, and as a result she was unable to repay her loan, and after her creditor had sent men to beat her and threatened to kill her if she still failed to repay her loan, the Applicant became fearful for her life and fled to Mong Cai, and on 31 October 2016 she departed Vietnam for China, and from there she later sneaked into Hong Kong, and after 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 16 December 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 18 January 2021 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 Claim”), 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 and 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 the Applicant 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 96 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 where it would be difficult if not impossible for her creditor to locate her.

8.  On 29 January 2021 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 8 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 July 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim, and that in any event even if her claimed fear of harm from her creditor over her outstanding debts were true it was a private monetary dispute between them without any official involvement that state/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 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.    

10.  On 10 August 2021 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 or in her supporting affirmation of the same date, 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.

11.  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.

12.  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 if true 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.     

13.  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.

14.  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