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

HCAL 1216/2018

[2021] HKCFI 256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1216 OF 2018

BETWEEN

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 1959, is a national of Vietnam.  According to immigration records, she was arrested by Hong Kong police on 29 August 2013 for illegal remaining and repatriated to Vietnam on 17 September 2013.  On 11 December 2013, she surrendered herself to the Immigration Department claiming that she had entered Hong Kong unlawfully via Mainland China on 30 October 2013. She then lodged a non-refoulement claim and 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 [22-35] 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 creditors.  She claimed that in 2012 she borrowed 300 million VND, 400 million VND and 300 million VND respectively from 3 creditors, who were not money lenders, but were people in the village who had received compensation from an investment project which had claimed their land.  She borrowed the money in order to send her second son overseas to have a better life and assist the family in return.  When she was unable to repay even the interests, the money lenders sent their men to her home and stood outside yelling that if she did not pay the money, they would come into their house and kill her.  They would yell for about 30 minutes each time and then leave.  She did not report the matter to the police.  Her another son organized a middleman to arrange her journey to Hong Kong.  On 27 September 2012, she left Vietnam for China where she stayed for about a month before being returned to Vietnam.  In mid-July 2013, she came to Hong Kong illegally but she was later voluntarily repatriated to Vietnam on 17 September 2013 because she missed her family.  She left Vietnam again in mid-October 2013 and enter Hong Kong illegally on 30 October 2013.  She is worried that she will be harmed or killed by the money lenders or their men if she returns to Vietnam.

The Director’s decision

4.By a notice of decision dated 10 March 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The Director assessed her risk of harm as low and state protection and internal relocation are 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 applicant attended a hearing before the Board on 12 February 2018.

6.By a decision dated 15 June 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 [36-55] of its decision.  In a nutshell, the Board observed that her creditors were only fellow villagers, it would seem highly unlikely that they would send men to threaten and harm her for non-repayment.  Nevertheless, the Board gave her benefit of doubt and accepted that she might have defaulted on a loan and that she received some threats when she failed to make repayment.  However, she was not harmed prior to her departure from Vietnam and was able to return to her home at night, when she returned to Vietnam after each departure.  Moreover, her elder brothers still live in the house and her son and daughter also live in Hai Phong, when the applicant provided no information that they had faced any problems because of her default.  In the circumstances, the Board found that the risk of harm to the applicant at the hands of her creditors to be very low.  In any event, the Board found she would be able to obtain assistance of the police, and she can safely relocate to elsewhere in Vietnam.

8.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 28 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 any grounds for the relief sought.  In her affirmation in support, she repeated her claimed fear as she is unable to repay her debt.

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.  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.

12.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 decision will only focus on discussing the Board’s decision.

13.In the present case, the Board fairly did not take issue with the applicant’s asserted primary facts.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of police protection and viability of internal relocation.

14.As mentioned above assessment of evidence, the risk of harm and 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.

15.The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  It was only a repetition of her claimed fear.  There is no reasonably arguable basis to challenge the findings of the Board.

16.Indeed, the applicant’s claim is unconvincing.  Even on her own account, the alleged past ill-treatment was of low intensity and frequency indicative of no real risk of serious harm.  It came nowhere near the level of severity required by law for the claimed protection.  The decisions of the Director and the Board decision are wholly reasonable.

17.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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

18.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 the 1^st of February 2021

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