Bui Thi Phuong v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 959/2018

[2020] HKCFI 2637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 959 OF 2018

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 1968, is a national of Vietnam.  On 10 March 2015, she was arrested by officer of the Immigration Department and subsequently convicted of offences including using forged ID card and taking up unlawful employment and sentenced to 15 months’ imprisonment.  On 10 October 2015, when she was serving her sentence, she lodged a non-refoulement claim.  She was subsequently released on recognizance when she had served the term of sentence.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [2-9] 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 600 million Vietnamese Dong she and her husband borrowed from a money lender in 2011 for their noodle stall business.  The business closed down after several months.  She and her husband were unable to repay the debt.  She had been on 2 occasions in 2012 threatened by her creditor that she would be killed if she could not repay the debt.  In about November 2012, she left her home country for Hong Kong via Shenzhen.  She was arrested the next day and repatriated.  She stayed at Hanoi for 3 days and then came to Hong Kong via Shenzhen again.  She last contacted her husband in about December 2014.  Her husband told her the creditor visited their house and asked for her whereabouts from time to time, threatening that she would be killed if she returned to Vietnam.

The Director’s decision

4.By notices of decision dated 7 July 2016 and 15 March 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 24 January 2018.

6.By a decision dated 22 March 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim at para [20-85] of its decision.  The reasons can be summarised as follows:

(1)  the applicant’s account is rejected as untruthful [20];

(2)  she did not claim protection as soon as practicable after landing or before being arrested [23];

(3)  her assertions did not have any objective support [24];

(4)  the Board did not accept that she had been ill-treated as alleged or at all [36];

(5)  the gravity of alleged ill-treatment was low [43];

(6)  in any event, state protection and internal relocation are available to her [56,82].

8.Having considered all the circumstances relied on by the applicant, the Board found that the applicant was not at real risk of any of the proscribed types of harm.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 28 May 2018 for leave to apply for judicial review of the decision of the Board.

10.In the Form 86, the applicant did not set out any grounds of review.  The complaints in her affirmation in support can be summarised as follows:

(1)  the Board cherry-picked the facts in their consideration of her claim;

(2)  it underestimated her risk of being persecuted as the adjudicator had never lived in Vietnam;

(3)  the Board quoted materials which were inconsistent with the real situation in Vietnam.

11.The applicant also attached with her affirmation some materials which appear to have been downloaded from internet.

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 his 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 the latter’s decision.

15.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the objective COI material and the illogicality of the applicant’s evidence.  Even on her own case, the gravity of ill-treatment was low.  On the factual findings, there would be no basis for the applicant’s claimed fear.

16.Furthermore, the Board found there are state protection and option for internal relocation available to the applicant.

17.As mentioned above assessment of evidence, risk of harm, availability of state protection 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.

18.The complaints in the affirmation of the applicant are just general and vague assertions, without any specifics or evidence in support.  It did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a request for rehearing of the appeal.  The Board’s decision show that it evaluated the relevant objective COI materials properly and considered all relevant evidence before it.  It provided adequate reasons for its decision.  There is no reasonably arguable basis to challenge the findings of the Board.

19.The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

20.Even on the applicant’s own account, the past ill treatment was of low intensity.  It did not reach the level of severity required to constitute torture or CIDTP.  She was not assaulted by her creditor.  Her husband was not even harmed by the creditor after the applicant had left Vietnam.  Moreover, the applicant’s conduct in Hong Kong by her delay in lodging the claim for protection damaged her credibility and was inconsistent with someone in genuine fear for his life and safety.

21.The findings and the decision of the Board are proper and reasonable.

22.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

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

Dated 15 October 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