HOANG THI MUOI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1501/2021

[2021] HKCFI 3910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1501 of 2021

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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 55-year-old national of Vietnam who entered Hong Kong illegally on 20 November 2019 and surrendered to the Immigration Department on 26 March 2020 when she raised a claim for non-refoulement protection on the basis that if she returned to Vietnam she would be harmed or killed by her creditors over her outstanding debts.

2.  The Applicant was born and raised in Hai Phong, Vietnam.  After leaving school she worked in various jobs in her home district, and in 2015 she ran her own fruits selling business and from time to time resorted to borrowing from the local loan sharks with monthly interest payments on her loans, but in August 2018 she started to have difficulties making those payments, and after being threatened and beaten by men sent by her creditors, she fled to Mong Cai and departed Vietnam on 15 November 2019 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 25 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

3.  By a Notice of Decision dated 26 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”).

4.  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 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 reliable evidence of any real intention of them to seriously harm or kill her other than to put pressure on her to repay her debts, that these were private monetary disputes between the Applicant and her 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 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 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 creditors to locate her.

5.  On 3 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 24 September 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 22 October 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

6.  In its decision the Board found the Applicant’s claim exaggerated and unreliable that in the absence of any further or documentary evidence that it doubted the credibility of her claimed fear of harm from her creditors upon her return to Vietnam, and that in any event they were private monetary disputes between her and her creditors in the absence of any official involvement that state or police protection would be available to her 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.     

7.  On 29 October 2021 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 Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim in that they were not reasonable or fair as required by the Wednesbury test as her right to life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)   that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting her non-refoulement claim as the Applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(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 Director failed to consider or give sufficient weight to the COI which supported the Applicant’s case that the police in her home country would not be able to protect and ruled otherwise which is a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void;

(5)   that the Director failed to attain high standards of fairness in failing to consider the fact that corruption and incompetency of the police and the administration in the Applicant’s home country which various human rights organizations had complied reports that stated testament to the Applicant’s assertions that the Director’s decision should be considered unreasonable in the scope of public law;

(6)   that the Adjudicator was procedurally improper and unfair when assessing whether to accept explanation provided by the Applicant and unreasonably required her to respond to questions which she was not in a position to offer any response;

(7)   that the Adjudicator failed to take into account the nexus of political parties and official corruption which existed in the Applicant’s home country making persecution effectively persecution by the state; and

(8)   that the Adjudicator’s decision to dismiss the Applicant’s appeal based on findings which it ought to allow the appeal and hence the decision is irrational.  

8.  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 apply to her case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to apply high standards of fairness in assessing his claim, or in what way would the concepts of state acquiescence or extra-judicial killings be relevant to her claim based on her own case at the highest were private monetary disputes between her and her creditors without any official involvement that such proposed grounds are wholly irrelevant and not applicable to her case.  As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant who also failed to attend the hearing of her application without any explanation, I do not find any of them reasonably arguable for his intended challenge.

9.  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.

10.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.     

11.  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.

12.  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