Luu Thi Van v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2342/2018

[2021] HKCFI 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2342 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 submission 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 1978, is a national of Vietnam.  On 2 June 2015 she was arrested by the police for illegal remaining and referred to the Immigration Department for investigation.  She then raised her non-refoulement claim.  She claimed that she sneaked into Hong Kong by boat illegally from Shenzhen on 31 May 2015.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [4-18] 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 in 2005 she borrowed a loan of 1 billion Vietnamese Dong from a female, Hien, to start her seafood business.  As she was unable to repay the debt, since March 2014 her creditor had threatened to kill her if she could not repay on 4 occasions. The men came with the creditor even assaulted her on the fifth occasion in early May 2015.  To avoid her creditor, she escaped to Hong Kong via Shenzhen.

The Director’s decision

4.By a notice of decision dated 5 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 3 risk^[2], persecution risk^[3] and BOR 2 risk^[4].  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low.  He found that state protection is available to the applicant and internal relocation a reasonable alternative to her.  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 24 May 2018.

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

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [75-169] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the Board noted the internal inconsistency as well as implausibility in the evidence of the applicant [98-104];

(2)  the Board considered that the applicant’s allegations “fly in the face of common sense” [105];

(3)  the Board did not accept that the applicant did start a business of seafood, nor did it accept that she did borrow the big sum of money for her business.  It found that her claim relating to her borrowing of money for starting her business lacked “even the most basic level of coherence, detail or fundamental credibility”.  It had no doubt that this aspect of claim was simply a fabrication [107-108];

(4)  in any event, the Board found that there is reasonable state protection and internal relocation is a viable alternative for her [115, 131].

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 25 October 2018 for leave to apply for judicial review of the decision of the Board.

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

11.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.  She only repeated her claim in her affirmation saying that the decision of the Board is unfair.

Discussion

12.The relevantprinciples regarding non-refoulement claims 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, country of origin information, 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 the 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 will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

14.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it rejected her account of primary facts based on the major inconsistencies in her evidence and implausibility of her claims.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.  In any event, the Board found that state protection is available to the applicant and internal relocation a reasonable alternative to her.

15.As explained above, the assessments of evidence and risk of harm as well as the findings of reasonable state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

16.The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

17.Further, even if one givesher account the most favourable interpretation, the alleged past ill-treatments were of low intensity and frequency.  The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of serious ill-treatment or proscribed harm, if refouled.

18.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.

19.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

20.Accordingly, application for leave to apply for judicial review is refused.

Dated 2 March 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