Dinh Lan Huong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 225/2019

[2021] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 225 OF 2019

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 1964, is a national of Vietnam.  On 10 November 2015, she surrendered to the Immigration Department claiming that she had unlawfully entered Hong Kong from Mainland China.  On 24 February 2016, she lodged a non-refoulement claim and was subsequently released on recognizance.

3.The applicant had previously entered Hong Kong on five occasions in 1989, 2001, 2006, 2008 and 2011.  She had been found guilty and sentenced to various terms of imprisonment in Hong Kong for multiple offences including illegal remaining, breach of deportation order and trafficking of dangerous drug.

4.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [6-12] 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 35 million Vietnamese Dong she borrowed for her fish noodle business in 2004.  In January 2005, her creditor threatened that she would be assaulted if she did not repay the debt.  In February 2005, her creditor came to her home with some followers carrying with knife and baton to assault her and threatened that she would continue to be assaulted if she could not repay the debt.  She did not report to the police or receive medical treatment.  She came to Hong Kong to avoid her creditor.

The Director’s decisions

5.By notices of decision dated 1 September 2016 and 15 November 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

6.The applicant attended an oral hearing before the Board on 13 September 2018.

7.By a decision dated 20 December 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

8.The Board gave reasons for rejecting the applicant’s claimat para [38-59] of its decision.  In a nutshell, the Board reasoned that the applicant had come to Hong Kong in 1989 and 2001 for illegal employment before she borrowed the debt.  From 2006 to 2015, she had many chances to claim non-refoulement protection in Hong Kong, yet she did not lodge her claim but tried to make money by illegal means.  Her real purpose for coming to Hong Kong was for making money instead of for her fear of her creditor.  Moreover, every time after she was repatriated back to her country, she resided in Mong Cai city where she lived for a total of 4-5 years safely.  The Board did not believe that she came to Hong Kong in order to avoid her creditor [40-42].  Further and in any event, even if it was wrong in its findings of fact, the Board found that the violence she had received from her creditor was not severe.  State protection and internal relocation are also available to her.  Even if she really had a loan problem, there would not be a real risk of harm or ill-treatment if she is refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 24 January 2019 for leave to apply for judicial review of the decision of the Board, saying that her non-refoulement claim was refused on “2018.9.13” (sic). The applicant in fact attended the hearing before the Board on 13 September 2018 and the Board’s decision was made on 20 December 2018. 

10.In the Form 86, the applicant stated that her claim was not dealt with properly and fairly.  In her affirmation in support, she repeated the same.  She did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

11.The relevant principles 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 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.  Thisdecision will only focus on the Board’s decision.

13.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected her claimed fear of her creditor and her claimed reason for coming to Hong Kong based on the illogicality of her evidence.  On the factual findings, there was no basis for the applicant’s fear.  Further, even accepting her accounts, the Board found that the risk of harm was low.  In any event, state protection and internal relocation would be available to her.

14.As explained above, assessment of evidence, risk of harm, availability of state protection and viability 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.

15.The ground raised by the applicant is a vague assertion without particulars and unsupported by evidence.  It is not viable or reasonably arguable to challenge the findings of the Board.

16.Her conduct of not lodging her claim in her previous stays in Hong Kong indeed damaged her credibility and was inconsistent with someone in genuine fear for her life and safety.  Even on her own account, the past ill treatment was of low intensity.  She did not report the incidents of assault and threatening to the local police or authorities.  There cannot be any substantial grounds for believing that she would be at real risk of any type of proscribed harm, if refouled.  The Board’s findings and decision are eminently 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.

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

Disposition

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

Dated 4 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