LE THI KIEU OANH v. TORTURE CLAIMS APPEAL BOARD

HCAL 361/2022

[2023] HKCFI 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 361 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 32-year-old national of Vietnam who entered Hong Kong illegally on 19 November 2020 and was arrested by police on 23 November 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 over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Xa Gia Canh, Huyen Dinh Quan, Tinh Dong Nai, Vietnam. After leaving school she worked as a salesperson in a boutique in Ho Chi Minh City.

3.  In 2019 she started her own boutique business by borrowing a loan from a local money-lender repayable within one year and with monthly interest payments until discharge of the loan.

4.  Initially she managed to make her monthly interest payments from her business income until March 2020 when she had to close down her boutique after her business was seriously affected by the Covid-19 pandemic, and when she thereafter defaulted with her interest payments, her creditor came and demanded for full repayment of the loan, and when she was unable to do so, he beat her and threatened that she would be killed if she still failed to do so within one month.

5.  After the beating, the Applicant fled to Dong Nai Province to hide from her creditor, but one day in October 2020 she was attacked by 3 men sent by her creditor, and was threatened that she would be cut up with knives if she still failed to repay her loan within one week.

6.  As she was fearful for her life, the Applicant fled to Hanoi, and on 15 November 2020 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 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 22 July 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”).

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 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 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 102 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 the country away from her home district in large cities such as Da Nang or Hanoi where it would be difficult if not impossible for her creditor to locate her.

9.  On 4 August 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 6 January 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 May 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found inconsistencies and implausibility in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to leave her home country to come to Hong Kong and when she failed to raise her claim upon arrival until after her arrest by the police which further undermined her claim, and that in any event if such fear is real that it arose from a private monetary dispute between her and her creditor without any official involvement that state or police protection would be available to the Applicant upon her return to Vietnam that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 18 May 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, in which she repeated her claim of fear of harm from her creditor in her home country, and complained that the Board’s decision in suggesting that she could relocate to other part of her home country to avoid such threats as unsafe and unreliable given that her health is not good, that she is not an active person which may disadvantage her in the labour market, and that her creditor would be able to locate her through the nationwide social network of gangsters and corrupt police in Vietnam.

12.  These grounds put forward by the Applicant as noted above are however all just her vague and bare assertions without any 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 were those relevant COI relied on by the Board for its assessment of the availability of state protection and internal relocation wrong or inaccurate. As none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge, 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 merits in her intended application either.

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.  In the Applicant’s case, 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 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.

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.  Furthermore, the Applicant recently filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country.

17.  In the premises, as I am for the stated 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 Vietnam, 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