Nguyen Thi Lien v. Director of Immigration and Another

HCAL 824/2018

[2020] HKCFI 1626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 824 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 1990, is a national of Vietnam.  She was arrested by the police on 12 December 2015 and handed over to the Immigration Department.  On 15 December 2015, she lodged a non-refoulement claim.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at [23-37] 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 creditor in Vietnam, who was a triad member, as she had borrowed from him around 60 million Vietnamese currency and she had no money to repay.

4.According to the applicant, in around February or March 2015, Ah Lun (the creditor) and his followers visited her and threatened to damage her home and kill her if she did not repay the interest.  On a day in June 2015, Ah Lun came again with followers, who were carrying iron pipes, they damaged her home and threatened to kill her if she did not repay the money.  They did not assault the applicant.  The applicant moved to live at the home of her friend for a month.  In July, her friend told her the creditor had come to find her.  On 24 August 2015, she left Vietnam for Mainland China with her Vietnamese passport.  On 29 October 2015, she arrived at Shenzhen and entered Hong Kong unlawfully on the following day.  She slept in park and arrested by the police on 12 December 2015.

The Director’s Decision

5.By a notice of decision dated 16 June 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

6.The Board decided to determine the appeal without a hearing.  By a decision dated 4 May 2018, the Board rejected the appeal/petition on all applicable grounds, confirming the Director’s decision.

7.The Board’s main reasons for rejecting the non-refoulement claim were inter alia that: it was only a private money dispute and the applicant was only verbally threatened, not assaulted; the harm to her did not attain the requisite minimum degree of severity; she did not report to the police or authorities; the creditor only intended to give some pressure; and the suggestion that Vietnam police would not assist her was only her speculation.  Having considered all the relevant circumstance as she claimed, the Board concluded that the applicant failed to show any real risk of harm, if refouled to Vietnam.

8.Furthermore, the Board also found that internal relocation was viable and reasonable.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 11 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. 

10.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 Director.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  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.

12.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.

13.By a letter dated 12 May 2020, the Court invited the applicant to submit information including any submissions that she would like to make.  Since then, she has made no response or submission to the Court.

14.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 internal relocation was a viable option for her.

15.As mentioned, assessment of evidence 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. 

16.The Board did not hold an oral hearing and it gave explanation for such decision [3].  I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 (which the Board referred to).  While there is no absolute right to an oral hearing, the question of whether an oral hearing should be afforded must depend on the standard of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision in terms of its outcome and consequence, the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: per Cheung CJHC (as he then was) in paragraph 26 of his judgment for the Court.

17.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 an immigration officer and the Board basically accepted the version of facts as advanced by the applicant before it came to conclusion, I do not find the course adopted by the Board to be irregular or unfair.

18.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

19.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.  I accordingly refuse to grant 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