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HCAL 716/2022
[2023] HKCFI 468
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 716 of 2022
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Le Thi Thanh |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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 53-year-old national of Vietnam who entered Hong Kong illegally on 17 June 2017 and was arrested by police on 27 June 2017 for the offences of immoral soliciting and illegal remaining in Hong Kong for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim with 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 Thon Mot, Xa Xuan Thinh, Huyen Trieu Son, Tinh Thanh Hoa, Vietnam. After leaving school she worked in a grocery store, got married and raised a family with a son.
3. After divorcing her husband in 2006 and having to support her son by herself, the Applicant in 2019 started to operate a clothes selling business by borrowing a loan from a local money-lender repayable within one year and with monthly interest payment until discharge of the loan.
4. Initially the Applicant managed to make her interest payments from her business income, but after her country was hit by the Covid-19 pandemic in 2020 and when her shop was forced to be closed down, she started to have difficulty repaying her loan, and after being threatened and assaulted by men sent by her creditor, the Applicant fled from her home district in April 2020 to take shelter in her friend’s place in Xa Xuan Loc.
5. However, in May 2021 she heard that her creditor was sending men to look for her in Xa Xuan Loc, and as she felt it was no longer safe to remain in Vietnam, she therefore departed on 17 June 2021 for China, and from there she later sneaked into Hong Kong, and after her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 October 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 14 January 2022 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 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 100 million people spread across a vast territory 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 Ho Chi Minh City where it would be difficult if not impossible for her creditor to locate her.
8. On 25 January 2022 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 16 June 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 June 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board found the Applicant’s evidence vague and devoid of details or particulars or documentary evidence that it doubted the credibility of her claim of fear of harm from her creditor that forced her to flee her country for Hong Kong, which was further undermined by her failure to raise her claim first upon arriving in Hong Kong until much later after her arrest by the police, and that in any event it was a private monetary dispute between her and her creditor 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 move safely to other part of the country away from her home district without any frisk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.
10. On 3 August 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or supporting affirmation, nor did she request any oral hearing for her application. As such 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 reasonably arguable basis 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 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.
12. 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 the Applicant’s claim if true 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. 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.
14. 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 March 2023.
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(TAM Kam-man)
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 March 2023
Le Thi Thanh
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 March 2023
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 19819/22/1/220/V3409
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1853/21 (Formerly RBCZ 5000166/21)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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