Nguyen Thi Thanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1214/2018

[2021] HKCFI 511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1214 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 1967, is a national of Vietnam.  On 8 April 2016, she surrendered herself to the Immigration Department claiming 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 [11] 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, Xuan, who was a money lender with triad background.  She claimed that in around July or August 2012, she borrowed 50 million VND at a monthly interest rate of 2.5 million VND from her creditor for setting up a shop for selling clothes.  Her business incurred a loss and she could no longer repay the monthly interest in January 2013.  On two occasions, her creditor and followers assaulted her and threatened to kill her if she could not repay the loan.  She did not report the matter to the police.  To avoid her creditor, she moved away from her home town but she was still located by her creditor.  On 28 March 2016, she left her country for Mainland China with her passport, and sneaked into Hong Kong unlawfully.

The Director’s

4.By a notice of decision dated 18 October 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

5.By a decision dated 25 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision, without a hearing.  The Board’s decision covered all applicable grounds.

6.The Board gave reasons for rejecting the applicant’s claimat para [12-93] of its decision.  In a nutshell, the Board found there was no reliable evidence to show the existence of the loan and the assault incidents.  In any event, it was a private money dispute only.  There was no evidence to show that the ill-treatment by the creditor attained the requisite level of severity.  The threats also fell short of the required level of a genuine and substantial risk of harm [51].  The creditor and her followers are non-state actors and there was no evidence that any public official had any connection with the money dispute [52].  There was also no evidence to show that the state of Vietnam was unwilling or unable to afford protection to the applicant [56, 65].  The Board noted that nothing eventful had happened to the applicant when she stayed in her friend’s home in various place for over three years.  As Vietnam is a vast country with a large population, it would be highly unlikely for her creditor to locate her [88].  It also found that internal relocation would not be unduly harsh for her [89].

7.Accordingly, the Boarddismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 28 June 2018 for leave to apply for judicial review of the decision of the Board.

9.In the Form 86, the applicant did not set out any grounds for the relief sought.  In her affirmation in support, she only repeated her claimed fear that she will be harmed or killed by her creditor because she cannot pay back the debt.

Discussion

10.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.

11.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 decision of the Director, it is unnecessary to delve into the decision of the Director.  This decision will focus on discussing the Board’s decision.

12.In the present case, the Board found there was no reliable evidence to show the existence of the loan and the assault incidents.  In any event, the Board found that even if the primary events were true, the ill-treatment she received did not reach the minimum level of severity required for international protection, and was short of a genuine and substantial risk of harm.  Further, it also found that reasonable state protection and internal relocation alternative are available to the applicant.

13.As mentioned above, assessment of evidence, the risk of harm, availability of state protection and 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.

14.The Board did not conduct an oral hearing.  I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277.  I do not find the course adopted by the Board to be unfair.  Even if the Board were to accept the primary facts alleged by the applicant, it would have rejected her claim on the ground that there was not a real risk of serious harm and that any possible risk of harm would have been reduced by the availability of state protection and internal relocation.  An oral hearing would not have assisted the applicant in any event.

15.The Form 86 and affirmation of the applicant did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.  They contained nothing to suggest that she was prejudiced because of the lack of a hearing.  It was only a repetition of her claimed fear which has been duly considered by the Board.  It cannot constitute a viable ground to challenge the decision 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 findings of the availability of state protection and internal relocation alternative by the Director and the Board are wholly reasonable.  On this basis, there is no reason to offer international protection to the applicant.

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 11 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