TRAN THI THU v. TORTURE CLAIMS APPEAL BOARD

HCAL 839/2022

[2023] HKCFI 2339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 839 OF 2022

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Vietnam who entered Hong Kong illegally on 24 December 2020 and was arrested on 29 December 2020 for illegal entry and undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison, during which she raised a non-refoulement claim to the Immigration Department on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts.

2.  The Applicant was born and raised in Cong Khu The Lang Ha Quan Ba Dinh Thanh Tip, Hanoi, Vietnam. After leaving university she worked as a company clerk, got married and raised a family with a son in her home district.

3.  In 2019 she established a beauty parlour business by borrowing a loan from a local money-lender repayable within one year and with monthly interest payments.

4.  Initially she managed to make her monthly interest payments from her business income, but due to the outbreak of the Covid-19 pandemic which had adversely affected her business, she started to default with her loan repayment in April 2020, for which she was threatened by men sent by her creditor, and after one occasion in August 2020 when she was severely beaten by those men with a warning that next time she would be killed if she still failed to repay her loan, the Applicant fled from her home to hide in an uncle’s place.

5.  As she was fearful of being located by her creditor, the Applicant on 20 December 2020 departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 20 August 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 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 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 her and her creditor 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 98 million people spread across a vast territory of more than 330,000 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 creditor to locate her.

8.  On 6 September 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 14 December 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 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of threats from her creditor over her outstanding debts but found no evidence of any real intention of her creditor to seriously harm or kill her, 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.

10.  On 26 August 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following ground for her intended challenge:

(1)  That the Board is wrong in suggesting that she can relocate to other area of her home country to avoid her creditor without taking into account of the fact that most creditors in Vietnam are gangsters with wide network and connection to corrupt police and government officials to track down their debtors or the many difficulties and obstacles that the Applicant will have to face in any new location in her home country;

(2)  That the Adjudicator is wrong to rule that the Applicant as unreliable that the decision is clearly unsafe;

(3)  That the Board’s decision to refuse the Applicant’s claim is wrong.

11.  These are however just some bare and vague assertions of the Applicant without the necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way is the decision wrong or unsafe, while the assessments of the availability of state protection and internal relocation to the Applicant were properly enquiry into the relevant COI as well as raising them with the Applicant during her appeal hearing. As such and as none of these assertions were properly elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 correctly 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.  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.  Moreover, the Applicant has recently filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country, and that she fully understood the consequence of her withdrawal in that it would being an end to her legal challenge of the Board’s decision and that the decision of the Director in rejecting her non-refoulement claim would be treated as final.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss 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