Case Document

100%Judiciary

HCAL 948/2018

[2020] HKCFI 2390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 948 OF 2018

BETWEEN

	Nguyen Thi Binh	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	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 the Applicant in open court

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 1963, is a national of Vietnam. On 31 May 2015, she was arrested for using a forged identity card and remaining without permission and subsequently on conviction sentenced to 15 month’s imprisonment. On 14 August 2015, she lodged a non-refoulement claim.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [30-41] 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. She claimed that she failed to repay the debt of 400 million Vietnamese Dong she borrowed from a loan shark in February 2014 to operate her clothes shop business which later declined. By August 2014, she was unable to repay the debt. Since then the creditor kept on threatening and assaulting her on many occasions. Eventually, she moved to stay at her brother’s home and left for Hong Kong via Mainland China illegally by boat to avoid her creditor’s harm.

4.Immigration record revealed that the applicant first arrived Hong Kong lawfully as a visitor and overstayed in 2003. She was convicted for the offence of overstaying and repatriated to her country in April 2006.

The Director’s decision

5.By a notice of decision dated 28 April 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The decision covered torture risk^{^[1]}, BOR 2 risk^{^[2]}, BOR 3 risk^{^[3]}, and persecution risk^{^[4]}. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

6.The Board held an oral hearing on 5 March 2018.

7.By a decision dated 4 April 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

8.The Board gave reasons for rejecting the applicant’s claimat para [42-71] of its decision. In a nutshell the Board, despite finding inconsistencies and unconvincing explanations in her evidence and that she may have fabricated her claims, gave benefit of the doubt to her concerning her past experiences in Vietnam [43]. It however had regard to the evidence including: after the threat and assault in November 2014 she continued to live at her shop until February 2015; after the threat in February 2015 she stayed at her brother’s home not far away from her shop before leaving Hong Kong and she did not have contact with the creditor during the time; she had no contact with the loan shark for over three years since February 2015; after arriving in Hong Kong in April 2015, she made no claim for protection until 14 August 2015 after she had been arrested for illegal working. The Board found her conduct inconsistent with a genuine fear of serious harm if she is returned to Vietnam [49].

9.Having considered all the evidence, the Board was not persuaded that there are substantial grounds for believing the applicant would face a genuine and substantial risk of being subjected to severe ill-treatment or harm, if refouled. In any event, the Board found that internal relocation is a reasonable option for her [70].

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 28 May 2018 for leave to apply for judicial review of the decision of the Board. By a letter dated 22 June 2020, the court invited the applicant to submit information including any submissions that she would like to make. Since then, the applicant has not made any response or submission to the court.

11.In the Form 86, the applicant did not set out any grounds for the relief sought. In her affirmation in support, she repeated what she had told the Director and the Board about her inability to repay the loan and that she would be killed by her creditor. She also stated that she could be put in jail if her creditor sued her for the offence of “fraudulence”.

12.She did not request an oral hearing. The application is therefore considered on the papers.

Discussion

13.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. In particular, 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.

14.When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on discussing the latter’s decision.

15.In the present case, the Board noted the inconsistencies and unsatisfactory explanation in her evidence. Nevertheless, it accepted the primary facts asserted by the applicant in respect of the loan and the threats of her creditor. It had taken a view on facts most favourable to her. It only disagreed with her on the evaluation of risk of harm flowing from the events and assessment of viability of internal relocation.

16.As mentioned above assessment of risk of harm and internal relocation are primarily 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.The complaint raised by the applicant in her affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a regurgitation of what she told the Director and the Board. Her claim that she would be put in jail for the offence of “fraudulence” was not raised before the Board. In any event, it is not supported by evidence and unarguable. There is no reasonably arguable basis to challenge the Board’s findings.

18.The Board adopted a fair manner in assessing the evidence of the applicant and took a view on facts most favourable to her. The Board did not challenge her credibility. On the inconsistencies and unconvincing explanation in her evidence, the Board could have been entitled to find adversely on her credibility.

19.The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection could also have damaged her credibility and was inconsistent with someone in genuine fear for her life and safety. At the hearing before the Board, she even admitted that an agent in the Mainland arranged the forged identity card and her employment in Hong Kong at a Chinese restaurant [42(c)].

20.Even on her own account, the alleged past ill-treatment was of low intensity. It came nowhere near the level of severity required by law to constitute torture or CIDTP.

21.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 do I see any failure on their part to apply high standards of fairness.

Disposition

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

Dated 28 September 2020

	(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 the Applicant’s 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 28 September 2020 Nguyen Thi Binh 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 28 September 2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 7095/17/5/101/V1319 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 488/17 (Formerly RBCZ 13580/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Cites 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration