BUI THI ANH v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 1691/2021 [2022] HKCFI 1586 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1691 of 2021 BETWEEN Bui Thi Anh Applicant and Torture Claims Appeal Board Putative Respondent and 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:  consideration of the documents only; or consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court; Order by Deputy High Court Judge Bruno Chan: The application for leave to apply for judicial review be dismissed. Observations for the Applicant: The Applicant is a 36-year-old national of Vietnam whose previous non-refoulement claim of fear of being harmed or killed by her creditor over her outstanding debts had been rejected by the Immigration Department and was repatriated back to Vietnam in September 2018 again entered Hong Kong illegally on 15 June 2020 and was arrested by police on 23 June 2020. After she was referred to the Immigration Department for investigation, she raised a subsequent claim on the basis that if she returned to Vietnam she would again be harmed or killed by her creditor over the same debts. She was subsequently released on recognizance pending the determination of her claim. The Applicant was born and raised in East Village, Zhongxia Commune, Thuy Nguyen, Hai Phong City, Vietnam. After leaving school she assisted her parents in their farming in her home village, and in 2012 she married her husband and raised a family with a daughter. In 2013 she started her own business selling clothes in a rented shop in Lui Deo City, and to expend her business she in April 2014 borrowed a loan from a money-lender in her home village repayable within 6 months and with monthly interest payments. However, a few months later her business turned bad, and in July 2014 she started to default with her loan repayments, and after men sent by the money-lender had threatened and assaulted her and also vandalized her shop, the Applicant in December 2014 departed Vietnam for China, and from there she sneaked into Hong Kong and raised her non-refoulement claim on the basis that she would be harmed or killed by her creditor over her unpaid debts if returned to Vietnam, and after her claim was rejected by the Immigration Department, she was repatriated to Vietnam on 11 September 2018 together with her son born out of her relationship with a Vietnamese man during her stay in Hong Kong. Upon learning of her return to her home village in Vietnam, the money-lender again sent men to threaten the Applicant for repayment of her loan, but later agreed to allow her to do so by monthly instalments, for which the Applicant found a job working in a flower shop, but when she later lost the job in May 2020 and was unable to make any further loan payments, the money-lender again sent his men to beat her badly, and as a result the Applicant placed her son in the care of her sister and fled to Mong Cai, and on 12 June 2020 she again departed Vietnam for China, and from there she later sneaked into Hong Kong again and raised her subsequent claim for non-refoulement protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 11 May 2021 the Director of Immigration (“Director”) rejected the Applicant’s subsequent 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”). In his decision the Director took into account of all the relevant circumstances of the Applicant’s subsequent 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 was no evidence of any real intention of them to seriously harm or kill her other than to put pressure on 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 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 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 creditor to locate her. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 23 September 2021 before the Board during which she confirmed the evidence as stated in her documents in the hearing bundle as true and adopted them as evidence for her appeal, and gave no further evidence or submissions for her claim. On 8 October 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board doubted the credibility of the Applicant’s claim of fear of harm from her creditor as questionable and unreliable, but found in any event that 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 if needed 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 by her creditor that her claim for non-refoulement protection failed on all applicable grounds. On 14 December 2021 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, and in her supporting affirmation of the same date she stated that the decision has been reached unfairly without allowing her an opportunity to clarify her case and situation in her country, and that the Court should give her an opportunity to tell all the facts in details and a chance to seek justice and help her get asylum in Hong Kong. This complaint of the Applicant that the Board reached its decision without allowing her an opportunity to clarify her case or the situation in her home country is however factually incorrect, as it is clearly shown in the decision that the Applicant did attend an oral hearing for her appeal on 23 September 2021 before the Board during which she confirmed her evidence as stated in her documents in the hearing bundle as true and correct, that she adopted such evidence for her appeal to the Board, but that she gave no further evidence for her claim or had anything to add in her final submissions before the Board (see §§86 – 90 of the decision). For her present application the Applicant did not request any oral hearing, nor did she provide any further clarification for her case or the situation in her home country in her supporting affirmation regardless of whether she had or had not been allowed the opportunity to do so before the Board, while it is also clear to me that the Board did carefully consider the relevant COI as to the situation in her home country including the availability of state protection and internal relocation to the Applicant upon her return to Vietnam (see §§65 – 74 of the decision). In the circumstances, there is simply no basis or merits in this complaint of the Applicant, 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. 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. In the Applicant’s case, the fact is that it has been correctly 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. 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. Furthermore, the Applicant recently on 20 April 2022 filed an affirmation requesting to withdraw her application as she has settled her debt that her creditor no longer pursues her and that it is now safe for her to return to her home country. In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that her problem in her home country has been resolved and that it is now safe for her to return to Vietnam, I accordingly dismiss her leave application. Dated the 27th day of May 2022 (Chung Lai Fan, Christine) 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: 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)). Sent to the Applicant on 27th May 2022 Bui Thi Anh Applicant’s ref. no.: Nil. 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 27th May 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 17978/21/5/91/V2851 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 303/21 (formerly RBCZ 10212/21; QA T/C 169/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1