Le Thi Huong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1129/2018

[2021] HKCFI 644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1129 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 1990, is a national of Vietnam.  She arrived in Hong Kong on 16 December 2013 on the strength of her passport and was permitted to remain until 20 December 2013 as a visitor.  She overstayed and remained in Hong Kong unlawfully.  On 30 December 2013, she surrendered herself to the Immigration Department and 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 [2, 34-58] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant and her husband would be harmed by the police in Vietnam.  She claimed that she and her husband were at risk of harm from police in Vietnam as a result of a traffic incident that occurred on 9 December 2013 in Vietnam when she was riding a motorbike that went through a red light and that her husband was on the bike as well.  They were stopped by the police officers.  During the argument with the police about the penalty and confiscation of their motorcycle, her husband accidentally knocked one of the police officers’ badges from his uniform.  She and her husband declined to go to the police station and walked home.  The police officers did not arrest or detain them.  However, on the next day a police summons was served addressed to her husband asking him to attend a police station.  They feared that they would be prosecuted and harmed by the police as a result of the incident arising out of the traffic incident and they fled as a result.  On 10 December 2013 they first moved to the home of their friend living away from their home area.  Her husband was of the view that the police would eventually be able to locate them.  She therefore followed her husband’s decision to leave Vietnam by air together for Hong Kong on 16 December 2013.  Her husband had also filed a non-refoulement claim which was also refused by the Director and the Board.  He is now the applicant in the leave application for judicial review in HCAL 2584/2019.

The Director’s decision

4.By a notice of decision dated 22 February 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 that her risk of harm as low for the reasons including that the summons was only addressed to her husband requiring him to attend the police station for investigation, it was only her assumption that the police are going to retaliate; she and her husband had never sustained any harm or threats from the police and there is no indication that the police will handle their case in uncivilized or illegal ways.  The Director also found that state protection is available to the applicant and internal relocation is a viable option for her.  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 9 March 2018.

6.By a decision dated 8 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.  The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [61-92] of its decision.  In a nutshell, the reasons can be summarized as follows: While the applicant’s account of primary facts as to the traffic incident and the issue of summons was not challenged by the Board, it found that the applicant had exaggerated her claims to be harmed by the police.  The Board reasoned that the claims only related to a single traffic incident and neither the applicant nor her husband were harmed as a result.  The police even allowed them to leave the scene of the incident notwithstanding that the police had requested her husband to go to the police station with them.  Neither the applicant nor her husband had previously had any difficulties with police or other authorities in Vietnam and they were able to obtain their passports and leave Vietnam without difficulty to come to Hong Kong.  The Board found that her claims to fear harm are not credible [61].  There are no substantial grounds to believe that she faces a real risk of being subjected to torture or CIDTP or persecution if she returned to Vietnam.  While the Board considered that it was unnecessary to look at relocation option, it in any event found that she could reasonably relocate elsewhere in Vietnam if she feared harm in her home area [91].

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

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 19 June 2018 for leave to apply for judicial review of the decision of the Board.

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

10.In the Form 86 and supporting affirmation, the applicant stated that she is afraid that the local authority will put all the blame on her shoulder because of all things happened in the past, and that they would cause something harmful to her life.

Discussion

11.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.

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

13.In the present case, the Board did not take issue with the applicant’s asserted primary facts about the traffic incident and the summons issued to her husband.  It however disagreed with the applicant on the assessment of risk flowing from such events and found that the applicant exaggerated her claims about her fear of harm by the police in Vietnam.  It did not accept that her claims to fear harm are credible.  Based on its findings, there would be no basis in support of the claim.  In any event, the Board considered that she could reasonably relocate to elsewhere in Vietnam if she feared harm in her home area.

14.As explainedabove, the assessments of evidence, risk of harm, 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.

15.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.  The bare general assertion that the local authority will put all the blame on her shoulder is vague and unsupported by evidence. 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.

16.Indeed, the applicant’s claims of fear of harm at the hands of the local police in Vietnam (because of a minor traffic offence and a summons for his husband to attend a police station) are far-fetched and unsupported by evidence.  The evidence in the present case can hardly establish that the applicant would be at real risk of being subjected to any type of serious or proscribed harm, if refouled.

17.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

18.Therecannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

19.Havingconsidered 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.

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

Disposition

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

Dated 23 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