Dao Thi Nhung v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1116/2018

[2020] HKCFI 2696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1116 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 submission of the Applicant in open court

Order by Deputy High Court Judge C P Pang:

1.   Extension of time for the application for leave to apply for Judicial Review be refused; and

2.   Application for leave to apply for Judicial Review be dismissed.

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 1984, is a national of Vietnam.  On 5 August 2015, she surrendered to the Immigration Department and 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 para [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 creditor.  She said that she failed to repay the debt of 1 billion Vietnamese Dong she borrowed from a loan shark in mid-2011.  She borrowed the money to expand her business of selling rice and noodle. She failed to repay the interest and loan since January 2012.  She had been on a few occasions threatened by her creditor’s followers that she would be killed if she could not repay the debt.  In one incident, she was bumped by a motor cycle driven by follower of the creditor.  In another incident, she was pushed by the pillion rider of a motor cycle.  Her shop was closed in mid-2014 and she fled to live in Hai Phong and Mong Cai for two months.  On 4 July 2015, she used her passport to leave Mong Cai for China and later entered Hong Kong unlawfully.

The Director’s decision

4.By a notice of decision dated 15 February 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the applicant.  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

5.The Board did not conduct an oral hearing.

6.By a decision dated 14 February 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim at para [25-46] of its decision.  In a nutshell, the Board found the applicant’s reasons for fear are not valid because: the fear arose from a private loan dispute; her creditors did not inflict any serious harm on her or her family members [24]; the ill-treatment she experienced did not reach the minimum level of severity to amount to torture or CIDTP [35].  She failed to establish that she was deprived state protection [31].  Further and in any event, internal relocation is a viable option to her [46].

8.Having considered the totality of the evidence before it, the Board concluded that the applicant’s claim failed on all applicable grounds and confirmed the decision of the Director [48].

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 15 June 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 her grounds for relief sought.  In her affirmation in support, she only stated “I can not safe and I am very worried about everything” (sic).

11.No request for oral hearing has been made.  The application is therefore considered on the papers.

Discussion

12.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.

13.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 the latter’s decision.

Application out of time

14.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.

16.In this case, the 3-month time limit expired on 14 May 2018 and the application was late by more than one month.  The delay was not a short one and the applicant did not provide any explanation for the delay.  I do not see any satisfactory or valid reason for the delay.

Merits of the intended application

17.As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.In the present case, the Board did not take issue with the applicant’s claimed primary events.  It rejected the applicant’s appeal/ petition based on its assessment of risk she would face, if refouled.  Further and in any event, the Board found that internal relocation is a viable and reasonable option for her.

19.As mentioned above, assessment of risk of harm and availability of 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.

20.The Form 86 and affirmation of the applicant did not contain any grounds to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a request for rehearing of her case.  There is no reasonably arguable basis to challenge the findings of the Board.

21.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 had reminded itself of the principles on oral hearings and considered that it was not necessary to have one in the present case.  The Board gave detailed explanation for such decision [16-21].  It correctly applied the principles and considered all relevant factors for its decision.

22.There was no challenge with regard to procedural regularity and fairness.  Bearing in mind that the applicant personally attended the screening interview with the immigration officer with legal assistance and the Board also 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.

23.On the applicant’s own account, the past ill treatment was of low intensity and frequency.  It did not reach the level of severity required to constitute torture or CIDTP.  She did not report the matter to the local police or authorities.  She resided in Hai Phong and Mong Cai uneventfully for 2 months before she left Vietnam.  There cannot be any substantial grounds for believing that she would be at real risk of any type of proscribed harm, if refouled.

24.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

25.For the reasons given, there is no prospect of success in the applicant’s intended application.  In the absence of good reason for her delay in the application, I refuse to grant extension of time and dismiss her application for leave to apply for judicial review.

Dated 4 November 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