VU THI QUE v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 896/2019 [2023] HKCFI 450 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 896 of 2019 BETWEEN Vu Thi Que 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: Leave to apply for judicial review refused. Observations for the Applicant: The Applicant is a 48-year-old national of Vietnam who entered Hong Kong illegally on 29 March 2015 and surrendered to the Immigration Department on 30 March 2015 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim. The Applicant was born and raised in Nam Hoa, Yen Hung, Quang Ninh, Vietnam. After leaving school she got married and raised a family with 2 children in her home district. In 2008 the Applicant started to run a business with her husband selling coal in their home district, and for expending their business in 2010 they borrowed loans from 2 local money-lenders with interests charged on the loans payable every month. However, their business did not fare well, and from 2011 they were having difficulties with their loans repayments, and for which their creditors started to make threats against them which eventually drove her husband to commit suicide in February 2011. Thereafter the Applicant closed down the business, and fled from her home district to avoid further threats from her creditors, and later when she heard that they were looking for her everywhere, she therefore departed Vietnam on 26 March 2015 for China, and from there she later sneaked into Hong Kong, and upon her subsequent surrender to the Immigration Department, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 8 November 2017 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”). 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 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 95 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 or Da Nang where it would be difficult if not impossible for her creditors to locate her. 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 8 February 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 March 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board accepted the Applicant’s claim of fear of harm from her creditors over her failure to repay her debts, but found that it was a private monetary dispute between them 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 risk of being located by her creditors that her claim for non-refoulement protection failed on all applicable grounds. On 2 April 2019 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 merely repeated her claim as before of fear of being harmed or killed by her creditor as before but without putting forth any proper ground for her intended challenge, 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. 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 her 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 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. 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. 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 20th day of February 2023. (FUNG Chui-shan) 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 20 February 2023 Vu Thi Que 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 20 February 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 9205/17/11/216/V1811 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2481/17 (Formerly RBCZ/11103/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1