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HCAL 632/2018
[2019] HKCFI 1016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 632 of 2018
BETWEEN
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Cao Thi Hau |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 41-year-old national of Vietnam who entered Hong Kong illegally on 11 August 2015 and was arrested by police on 13 August 2015. 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 loan. She has since been released on recognizance pending the determination of her claim.
2. The applicant was born and raised in Bắc Giang City, Hai Phong, Vietnam. After leaving school she worked in a factory and got married with two children. In 1997 she operated her own meat stall in Bắc Giang City selling poultry.
3. In 2000 her husband passed away, and in 2010 she decided to expand her poultry business by borrowing 200 million Vietnamese đồng from a money-lender with monthly interest payments at 3% of the principal loan.
4. Initially her business was doing fine and she was able to keep up with her loan repayments, but in mid-2011 it was hit by economic recession that she started to having difficulty keeping up with her loan repayments, and by late 2011 her creditor would send men to her home to press for payments with threats of violence.
5. When in 2015 her creditor started to threaten to kill her if she again defaulted with her payments, the applicant decided that it was no longer safe to remain in Vietnam as her creditor was a dangerous triad member, and so on 6 August 2015 she departed for China, and from there she sneaked into Hong Kong and raised her non-refoulement claim, for which she completed a Non-refoulement Claim Form on 12 August 2016 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Service.
6. By a Notice of Decision dated 2 September 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her creditor and his men to the applicant upon her return to Vietnam as low due to the absence of intensity and frequency of past ill-treatment from them, that they had no real intention of harming or killing her as they just wanted to recover their money from her, that in the absence of 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 work experience to move to other part of Vietnam away from her home district in large cities such as Ho Chi Minh where it would be difficult if not impossible for her creditor or his men to locate her.
8. By a Notice of Further Decision dated 28 July 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
9. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which she attended an oral hearing on 30 August 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 29 October 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.
10. In its decision the Board found serious discrepancies in the applicant’s account between that previously given to the Director and later to the Board that it was not persuaded that she was in any debt to or pursued by her creditor or to accept the fundamental basis of any of her claims in respect of feared harm from her creditor, and concluded that there is no real risk that she would face any of the prescribed forms of harm should she return to Vietnam, and that her claims for non-refoulement protection were therefore not made out on any of the applicable grounds.
11. On 6 August 2019 the applicant filed her Form 86 as amended with leave on 22 March 2019 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just repeated her claim that her life would be in danger if refouled to Vietnam for failing to repay her loan, and at the hearing of her application she merely asked to be allowed to remain in Hong Kong until such time when her family back home was able to repay the loan for her. In the absence of any legal error or procedural unfairness being shown by the applicant in either decision, I am unable to see any reasonably arguable grounds 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 where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Director 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 Re Litoun Mounsy [2018] HKCA 537.
13. In the applicant’s case, the Board rejected her claims based on its adverse finding on her credibility for the through and detailed analysis and reasoning set out in §§58 – 71 of its decision after having had the benefit of hearing her in evidence and in her answers to questions raised by the adjudicator in respect of her claims at her oral hearing, and in the absence of any legal error or procedural unfairness being shown by the applicant in the decision, I am unable to find any reasonably arguable basis to challenge the finding of the Board.
14. Furthermore, the fact is that it has been established by the Director in his 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.
Dated the 10th day of September 2019.
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(NG Ka-wing) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 10 September 2019
Cao Thi Hau
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 September 2019
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 4827/16/9/206/V469
Director of Immigration
2nd Putative Respondent’s ref. no.:
RBCZ 9002714/17
(Formerly RBCZ 13001/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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