TRAN THI THUY LINH v. TORTURE CLAIMS APPEAL BOARD

HCAL 57/2023

[2023] HKCFI 3241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 57 OF 2023

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 34-year-old national of Vietnam who entered Hong Kong illegally on 19 November 2020 and was arrested by police on 10 December 2020.  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 for failing to repay her debts. She was subsequently released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in Xom An Noi, Xa An Lu, Huyen Thuy, Nhuyen, Hoi Phong City, Vietnam. After leaving school she worked in the factory, got married and raised a family with 2 children in her home district.

3.  In 2012 she started her own livestock farming business by borrowing a loan from a local money-lender with monthly interest payments until the discharge of the loan, for which she managed to make from her business income.

4.  However, in May 2018 her livestock was wiped out by a plague that she lost her business, and when she was unable to repay her loan, her creditor sent men to threaten and beat her, and after 3 such beatings that she suffered cuts and bruises all over her body, and when those men on the last occasion threatened to kill her next time if she still failed to repay her loan, the Applicant became fearful for her life and fled from her home to hide in a friend’s place, and on 18 November 2020 she departed Vietnam 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 27 January 2021 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 29 October 2021 the Director of Immigration (“The 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

6.  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 debts, that in any event it was a private monetary dispute between them without any official involvement that state 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 100 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 area 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.   

7.  On 5 November 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 10 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 6 January 2023 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim of fear of harm from her creditor that caused her to leave her country to come to Hong Kong to seek protection, and that in any event even if such risk is real that it arose from a private monetary dispute between the Applicant and her creditor only without any state or 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 without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 16 January 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board reached its decision wrongly in assessing her non-refoulement claim in that the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that the Applicant’s right to life must be protected by the criminal law from the killings that she may face if deported to her home country;

(2)  That the Board failed to appreciate or give proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against her case;

(5)  That the Adjudicator was procedurally improper and/or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any response that it was a clear case of unfair attitude shown by the board which in itself is enough to render the decision void;

(6)  That the Board failed to attain high standard of fairness in failing to take the Applicant’s argument into account that corruption and incompetency of the administration in her country is still a very serious problem as various human rights organizations had compiled reports which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law; and

(7)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow the appeal and thus the decision was irrational.   

10.  These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without the relevant or necessary details or particulars or elaboration as to how they would apply to her case or in what way was the decision unfair or unreasonable, or how did the Adjudicator act in a procedurally unfair or irrational manner or to apply properly the relevant COI in assessing her claim, or what relevancy was State Acquiescence to her claim. None of these grounds are properly elaborated with the relevant details or particulars, and as such I do not find any of them reasonably arguable 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 where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim if real 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.  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.  Moreover, the Applicant recently on 20 November 2023 filed an affirmation requesting to withdraw her application as she wants to return to her home country as soon as possible.

15.  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 of her wish 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