DAO THI LUA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1171/2022

[2024] HKCFI 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1171 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 53-year-old national of Vietnam who entered Hong Kong illegally on 19 April 2019 and was arrested on 23 April 2019 for which she was subsequently convicted and sentenced to prison for 15 months.  Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her deceased husband’s creditor over his outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tien Hai District, Thai Binh, Vietnam.  After leaving school she worked as a farmer, married her husband and raised a family with 2 children in her home village.

3.  To help out with the family finance as her husband was also a farmer with limited income, the Applicant in 2006 went to Malaysia to work in a lumber company.

4.  In 2016 the Applicant returned to her family in Vietnam to resume farming in her home village, but soon discovered that her husband had incurred huge gambling debts from some local money-lender who would send men to threaten her husband whenever he was late or defaulted with his repayments, and on some occasions those men even beat or cut him with knives causing severe injuries to him in front of the Applicant and their children.

5.  In September 2018 her husband passed away due to drug overdose, and thereafter his creditor turned to the Applicant to demand her to repay his debts, and when she was unable to do so, his men would similarly threaten and beat her, and on the last occasion in January 2019 warned her that if next time she still failed to repay her husband’s debts, they would kill her and her children.     

6.  Fearing for her life and those of her children, the Applicant fled with her children to Hanoi and placed them in the care of her sister, and on 23 January 2019 she herself departed Vietnam for China, and from there she later sneaked into Hong Kong, and upon her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 January 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 1 April 2020 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 her being harmed or killed by her deceased husband’s 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 deceased husband’s debts, 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 98 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 areas 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 deceased husband’s creditor to locate her.

9.  On 6 April 2020 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 28 June 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 20 October 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted her claim of fear of harm from her deceased husband’s creditor that caused her to leave her home country to come to Hong Kong to seek protection, and that in any event even if her claimed risk were real that it arose from a private monetary dispute between them without any official involvement that state or 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 risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 31 October 2022 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 Adjudicator reached the decision wrongly in that it was unfair and unreasonable as required by the Wednesbury test in failing to recognize that the Applicant’s right to life must be protected by criminal law from the killing that she may face if deported back to her home country;

 (2)     That the Board failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

 (3)     That the Adjudicator acted unreasonable 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 Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but the Board failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant’s case;

 (5)     That the Adjudicator was procedurally improper and/or unfair when assessing whether or not to accept explanations provided by the Applicant and unreasonably required her to respond to questions that she was not in a position to offer any which was a clear case of unfair attitude shown by the board which in itself is enough to render the decision void;

 (6)     That the Board failed to attain high standard of fairness in failing to accept the Applicant’s arguments that corruption and incompetency of the administration in her country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s arguments and as such its decision should be considered unreasonable in the scope of public law; and

 (7)     That the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which the Adjudicator ought to allow the appeal/petition and that the decision was thus irrational.

12.  These are however all just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they would apply to her case or how did the Adjudicator or the Board err in the decision, or in what way was the decision unfair and unreasonable, or how did the Board wrongly assess or rely on the relevant COI or act in a procedurally unfair manner in assessing her claim, or what relevancy was State Acquiescence to her claim which even on her own case was a private monetary dispute between her deceased husband and his creditor without any state or official involvement that such argument is wholly irrelevant.  As such I do not find any of these grounds reasonably arguable for her intended challenge, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in her intended application.   

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 vDirector of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board dismissed her claim essentially on its adverse findings on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 56 of its decision with the benefit of hearing her in her oral evidence and answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the findings of the Board.

15.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim even if real 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 vJenkins & Anor [2013] 1 HKC 526.     

16.  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.

17.  Moreover, the Applicant recently on 2 January 2024 filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country but without providing any further details or explanation as to how it is so.   

18.  In the premises, as I am for the given 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 her home country, 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