Nguyen Thi Hoa v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 814/2018

[2020] HKCFI 1625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 814 OF 2018

BETWEEN

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 C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1970, is a national of Vietnam.  On 19 June 2014, she surrendered herself to the Immigration Department admitting that she had entered Hong Kong unlawfully.  She lodged a non-refoulement claim and was subsequently released on recognizance.  According to immigration records, she had been to Hong Kong twice before and repatriated after she had served her sentences for convictions of offences.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [22] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her ex-business partner, Lien, who claimed her son worked in the police department in Vietnam.

4.According to the applicant, she and two partners (one of them Lien), established a mine Company in Vietnam.  In June 2011, an accident occurred in the mine resulting in the death of one worker and 3 other workers were injured.  The company had to pay a compensation of 300,000,000 Vietnamese currency.  Lien insisted that the applicant must be responsible for the accident and take full responsibility.  Lien asked the applicant to pay her compensation of 600,000,000 Vietnamese currency for her loss.  She said her son worked in police department, if the applicant did not pay she would report the matter to the police department.  Since then, Lien telephoned the applicant two or three times urging her to pay the compensation and threatened that she would bring the applicant to the police for assaulting and punishing her.

5.At the end of 2011, Lien and some people came to the applicant’s home and forced into the house. The applicant hid herself in another floor.  Lien shouted to the applicant’s son saying that she would kill the applicant if she did not pay the compensation.  The applicant reported the matter to the local police station but she was ignored.  A police officer said to her that it would be useless as the person being complained of was the mother of the deputy chief of the police.  Worrying about her safety, she left Vietnam through proper procedures for Mainland China.  She lived in a farm in Guangdong province for two years. When she found many Vietnamese people were in there, she sneaked into Hong Kong.  She learned from her son that Lien is still looking for her.

The Director’s Decision

6.By a notice of decision dated 24 August 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for the reason that the claim was not substantiated.  The decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s Decision

7.The Board decided to determine the appeal without a hearing.  By a decision dated 7 May 2018, the Board rejected the appeal/ petition on all applicable grounds, confirming the Director’s decision.

8.The Board’s main reasons [23-28] for rejecting the non-refoulement claim were inter alia that: it was only a private money dispute; the applicant was only verbally threatened, she was not assaulted or harmed physically [24]; there was no evidence to suggest Lien’s son was involved in the dispute [27]; the feared harm had no proper basis [28]; she did not report the matter to other government authorities, her view that the government would not assist had no basis.  In substance, the Board found that the applicant failed to show any real risk of harm, if refouled to Vietnam.

9.Having considered the relevant Country of Origin information, the Board also found that state protection was available and internal relocation was viable and reasonable.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 10 May 2018 for leave to apply for judicial review of the decision of the Board.  She did not request an oral hearing.  The application is therefore considered on the papers. 

11.In the Form 86, the applicant did not state any grounds of judicial review.  In her supporting affirmation, she only attached the decision of the Board.  Her application for legal aid had been refused.

Discussion

12.The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524.  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

13.As the Director’s decision has been superseded by the Board’s decision, the Director’s decision is not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

14.By a letter dated 12 May 2020, the Court invited the applicant to submit information including any submissions that she would like to make.  She replied in a letter saying that all her statement had been lost and she had no further information to provide.

15.In the present case, the Board in fact found that on the accounts of primary facts claimed by the applicant, she would not face any real risk of harm, if refouled.  It further found that state protection was available and internal relocation was a viable option for the applicant.

16.As mentioned, assessment of evidence, COI and the risk of harm are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so. 

17.It is noted that the Board did not hold an oral hearing.  It was a determination after considering the principles set out in ST v Betty Kwan [2014] 4 HKLRD 277.  The Board gave detailed explanation for such decision [16-21].  The Board correctly applied the principles and considered all relevant factors for its decision.

18.The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in her affirmation to suggest how the Board erred in the public law sense.  Nor was there a challenge with regard to procedural regularity and fairness.  Bearing in mind that the applicant personally attended the screening interview with the immigration officer and the Board accepted the version of facts as advanced by the applicant, I do not find the course adopted by the Board to be irregular or unfair.

19.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, irrational findings, or procedural unfairness in either of them, nor any failure of them to apply high standards of fairness.

Conclusion

20.For the reasons given, there is no reasonably arguable basis of the applicant’s intended application for judicial review.  I accordingly refuse to grant her leave to apply for judicial review.

Dated the 28^th day of July 2020

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