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

HCAL 1292/2018

[2021] HKCFI 512

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1292 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:

     1.  Extension of time to apply for Judicial Review be refused; and

     2.  Application for leave to apply for Judicial Review be dismissed.

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 1961, is a national of Vietnam.  According to immigration records, she was arrested by Hong Kong police in December 2000 and was sent back to Vietnam in 2001.  In November 2010, she again sneaked into Hong Kong and was sent back to Vietnam in 2011.  On 31 May 2013, she was arrested by the police for remaining in Hong Kong unlawfully and theft, and was sentenced to 15 months’ imprisonment.  On 7 March 2014, she lodged a non-refoulement claim. She 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 [17-29] 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 the creditor of her husband.  She claimed that one morning in January 2013, when she and her daughter were hawking, three or four unknown triad members came to her stall saying that her husband had owed them money and that she had to repay the debt for him.  They did not mention the amount of the debt.  When she said she was unable to repay, they damaged her stall and assaulted her causing bruises to her.  Since then, she never saw her husband again.  She did not seek medical treatment, nor did she report the matter to the police.  In fear of further harassment by the triad creditors, she decided to leave Vietnam for Hong Kong via Shenzhen.  In March 2013, after entrusting her two daughters to the care of her aunt, she went to Shenzhen by bus, and then sneaked into Hong Kong unlawfully.

The Director’s decision

4.By a notice of decision dated 19 July 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  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 is a viable option for her, which further reduced the perceived risk of harm.  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 decision

5.The applicant attended a hearing before the Board on 19 January 2018.

6.By a decision dated 8 March 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim at paragraphs [32-47] of its decision.  In a nutshell, the Board observed that the men asking for repayment of the debt of the applicant’s husband did not even mention the amount of the debt and merely threatened her to repay, it was clear that they merely wanted money and had no intention to harm her seriously.  She did not receive any serious injuries at all.  The ill-treatment she received also did not reach a minimum level of severity.  She failed to prove any risks under all the applicable grounds.  Further, internal relocation is available to her.

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 5 July 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, the applicant did not set out any proper grounds for the relief sought.  In her supporting affirmation, she repeated her claimed fear of harm by the creditors of her husband saying that the Board did not understand her situations in Vietnam and was not fair to her.

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 nevertheless also examine the decision of the Director 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.

Applicationout

14.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

15.The principles have been further explained by the Court of Final Appeal in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 37.  

16.In this case, even counting only from the 3-month time limit which ended on 8 June 2018, the application was late by about 4 weeks. The applicant did not request extension of time or give explanation for the delay.  I cannot find any good reason for the delay. 

Merits of the intended application

17.Nevertheless, I will also consider the merits of the intended judicial review, which is a more important factor in this case.  Far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

18.In the present case, the Board did not take issue with the applicant’s asserted primary facts and events.  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 finding on the viability of internal relocation.

19.As explained above, the assessments of evidence, risk of harm, 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.

20.The applicant mentioned nothing in the Form 86 or in the affirmation in specifics to suggest how the Board erred in the public law sense.  The bare allegation of unfairness without particulars or evidence in support cannot constitute a viable ground for judicial review. 

21.Indeed, the Board has taken a view on credibility favourable to the applicant.  The applicant delayed in lodging the claim for protection after she came to Hong Kong illegally and only after she was arrested.  Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety.  It could be taken into account as adversely affected the credibility of the claim.  An adverse view on credibility could have been taken by the Board.

22.Further, even if one givesthe claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm.  It came nowhere near the level of severity required by law for international protection to be offered.  There was also no valid reason why her husband’s creditors would target the applicant and still wish to pursue the applicant after so many years.  She can also safely relocate to other parts of Vietnam.

23.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

24.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.

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

Disposition

26.Accordingly, I refuse to give extension of time, and dismiss the application for leave to apply 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