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

HCAL 1224/2018

[2021] HKCFI 255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1224 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 decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1974, is a national of Vietnam.  On 4 March 2015, she was arrested by police and referred to the Immigration Department.  She claimed that she had entered Hong Kong unlawfully via Mainland China.  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 [24-47] 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, Ms Tiep, who was a loan shark.  The applicant claimed that in 2004, she borrowed 200 million VND from her creditor for medical expenses of her husband. Her husband passed away in 2005.  She spent the remaining money to establish her seafood business.  She suffered great loss and closed her business in 2008.  Her creditor did not collect the debt from her between 2004 and 2009 as she knew the situation of the applicant.  Since middle of 2009, Tiep started to collect the loan from her by visiting her home with followers.  From 2009 to 2012, Tiep visited the applicant’s home 7 times.  On one occasion, by the end of 2012, the creditor and her followers used a sword to point at the applicant threatening that she would be killed if she failed to repay the loan next time.  In around July to August 2013, the creditor and her followers punched her face and kicked her body when the applicant could not repay.  In the middle of 2014, Tiep came again with her followers threatening her again with death if she could not repay.  Subsequently, Tiep made phone calls to remind the applicant of repaying the loan twice every month.  In November 2014, the applicant learned that she could seek protection in Hong Kong.  In December 2014, she decided to leave her country for Mainland China and subsequently sneaked into Hong Kong by speed boat.

The Director’s decisions

4.By notices of decision dated 16 August 2016 and 11 August 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]. Having taken into account all relevant circumstances including the low intensity and frequency of the alleged past ill-treatment, the Director assessed the level of future risk of harm of the applicant as low.  He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm.  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 2 March 2018.

6.By a decision dated 15 June 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 claimat para [49-74] of its decision.  In a nutshell, the Board observed that apart from one occasion that the creditor’s followers punched the applicant’s face and kicked her body, the creditor just threatened her verbally.  It found that the ill-treatment she received did not attain a minimum level of severity required for the protection she sought.  Moreover, state protection is available to her [63-66].  On the totality of the evidence, the Board found that she faces no genuine and substantial risk of being subjected to ill-treatment if refouled to Vietnam [66].

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 proper grounds for the relief sought.  In her affirmation in support, she only repeated her claimed fear of harm at the hands of her creditor.

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 nevertheless 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 did not take issue with the applicant’s asserted primary facts about her debt and experience.  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 state protection.

14.As mentioned above, assessment of evidence, the risk of harm and availability of state protection are primarily within the province of the Board.  This court will not interfere with the decision 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 extremely weak.  Even on her own account, the alleged past ill-treatment was of low intensity and frequency indicative of an unreal risk of harm at the most.  It came nowhere near the level of severity required by law for the claimed protection.  The decisions of the Director and the Board 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 either of them.  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