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

HCAL 1206/2018

[2021] HKCFI 549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1206 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

2.The applicant applies for leave to apply for judicial review of the Decision dated 16 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

4.The applicant is a Vietnamese national. She came to Hong Kong on 11 December 2013 and was permitted to stay until 18 December 2013.  She overstayed and was arrested by police on 21 December 2013.  On 9 April 2014, she lodged her non-refoulement claim with the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed or killed by two creditors from whom she had borrowed money. In 2009, she had borrowed 500 million Vietnamese currency from a creditor called Thang and 200 million Vietnamese currency from another creditor called Nhi.  The money was for her fish pond business, which turned bad in 2011.  She was unable to pay the interest.  Thang and Nhi came with their people to chase her for repayment of the money.  In December 2012, Thang came with 3 followers. She was unable to pay.  They used an iron rod to assault her, causing bruises on her arm. She ran away together with her husband and her youngest daughter and hid themselves in another city for one year.  She then came to Hong Kong. Details of the incidents are contained in paragraph 2-10 of the Board’s Decision.

The Director’s Decisions

6.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 1 September 2016 (“the Director’s Decision”), the Director refused her claim for the reasons that the risk of being harmed or killed as alleged was assessed to be low and unlikely to happen [15]; that state protection would be available to her [16] and internal relocation was an option open to her [23].  By Notice of Further Decision dated 27 July 2017 (“the Director’s Further Decision”), the Director found that she had failed to establish a personal and real risk of the risk under BOR 2.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision.  She attended the hearing on 29 March 2018.

9.The Board rejected her appeal and affirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and found that:

(1)   the applicant’s evidence on the facts of her case, namely, her debts to the creditors or that she was running a fish farming business in her home country was untrue and the Board rejected her evidence [35];

(2)   state protection would be available to her [54 & 58];

(3)   no evidence that the state was involved in this case [55];

(4)   based upon the reasons above, the Board rejected her claim on Persecution risk [59], Torture risk [70], BOR 2 and BOR 3 risks [77]; and

(5)   internal relocation was an option open to her [84].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 27 June 2018 for leave to apply for judicial review of the Board’s Decision.  She said in her affirmation that if she returned to Vietnam, she would be subjected to torture or even killed by her creditor and his men because she could not pay back the debt.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  In a nutshell, the Board rejected her evidence on the facts in support of her claim.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

14.The applicant’s grounds in support of her application are not helpful for her application as the Board had rejected her evidence on the facts of her case.

15.The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 8^th day of 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