DO THI THUY v. TORTURE CLAIMS APPEAL BOARD

HCAL 2566/2018

[2021] HKCFI 2322

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2566 of 2018

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 37-year-old national of Vietnam who was arrested by police on 11 January 2014 for illegally entering and remaining in Hong Kong, and 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 husband’s creditors for failing to repay his debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Hai Phong City, Vietnam. After leaving school she worked as a restaurant worker, married her husband and raised a family with one son.

3.  In 2007 her husband started to endulge in alcohol and gambling which led to frequent quarrels between them, and one day in early 2012 she returned home to find her husband missing together with his belongings and had not been heard of since.

4.  Several months later some men came to the Applicant’s home claiming to be her husband’s creditors looking for him, and when they were told that he had disappeared, they demanded that the Applicant should repay his debts on his behalf, and threatened to sell her for prostitution if she failed to do so within one month.

5.  One month later those men returned for the payment, and when the Applicant was unable to do so, they then beat her and broke things in her house, and threatened to kill her next time if she still failed to make any payment.      

6.  After they left, the Applicant became fearful for her life, and fled to Hanoi to take shelter in a relative’s place, and on 4 January 2014 she departed Vietnam for China, and from there she later sneaked into Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 14 October 2016 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”).

8.  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 husband’s creditors 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 on their part to harm her, that it was a private monetary dispute between her husband and his creditors 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 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 husband’s creditors to locate her.

9.  On 24 October 2016 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 3 May 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 9 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to threats from her husband’s creditors that it doubted the credibility of her claim, and that in any event it was a private monetary dispute between her husband and his creditors 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 safely move to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.  

11.  On 14 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  that the Board failed to consider her claim objectively or fairly as well as underestimating the psychological impact and effects on the Applicant arising from her fear of harm from her creditor over her debts problem;

(2)  that the Board erred in finding that the Applicant failed to produce evidence of the threats and ill-treatments inflicted on her by her creditor despite the fact that she had done her best to do so under her most difficult situations; and

(3)  that the Board relied on conflicting and contradictory COI in determining that state/police would be available to the Applicant upon her return to Vietnam when there was ample information that the Vietnamese authorities were corrupt and incapable of providing protection to the citizens.  

12.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board had erred in the decision, or in what way did the Adjudicator fail to consider her claim fairly and objectively, or how did it fail to rely on the relevant COI or being selective or improperly rely on irrelevant COI. The Adjudicator had had the benefit of hearing her in oral evidence during her appeal hearing that she was entitled to make her findings based on the evidence and information available before the Board, 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 eth Applicant, I do not find any of her proposed grounds reasonably arguable for her intended challenge. 

13.  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.    

14.  Even if I were to find merits in those complaints of the Applicant, and as explained above that I have not, they would not have assisted or advanced her case, as 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.

15.  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.

16.  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