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

HCAL 1441/2018

[2021] HKCFI 756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1441 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 decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1981, is a national of Vietnam.  On 10 May 2012, she was arrested by the police for illegal remaining in Hong Kong and sentenced to 12 months’ imprisonment and deported back to her country.  On 10 July 2015, she was again arrested by the police for illegal remaining in Hong Kong and breach of deportation order.  She then lodged a non-refoulement claim. 

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [2] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed again or even killed by her creditor and/or her ex-husband.  She claimed that she and her ex-husband borrowed 1,000,000,000 VND for business from the creditor.  The business was later closed and they could not repay any interest or the loan.  She and her husband were then forced by the creditor to do drug-trafficking.  When she refused, she was kidnapped and detained for about 4 months, during which she was assaulted both physically and sexually.  She managed to escape but she could not return home fearing that she would be harmed by the creditor and/or her ex-husband who had previously assaulted her when she did not have money to give him.

The Director’s decisions

4.By notices of decision dated 24 June 2016 and 19 September 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].  Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds for believing that her ex-husband and her creditor would harm or kill her and that her perceived fear is not real and foreseeable.  He also found that state protection is available to the applicant and internal relocation a viable option for her.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 18 December 2017.

6.By a decision dated 13 July 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [11-81] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s evidence was not believable because of major discrepancies, and implausibility and evasiveness in her evidence [see 24, 32, 34, 37, 38, 42];

(2)  even if her evidence is accepted, state protection is available and internal relocation is a viable option for the applicant, which would lower or alleviate the feared risk, if any [46, 81].

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 23 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 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.  She only repeated her claimed fear which had been considered by the Director and the Board.

Discussion

12.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, 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 decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will nevertheless examine the decisions of the Director, it is unnecessary to delve into the decisions of the Director.  This decision will only focus on discussing the Board’s decision.

14.In the present case, the Board in fact rejected the applicant’s appeal/ petition based on the major inconsistencies, implausibility and evasiveness of her evidence.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

15.Moreover, the Board also found the availability of state protection and viability of internal relocation would negate or alleviate the feared risk, if any.

16.As explained above, 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.

17.The applicant mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  Regurgitation of her claimed fear cannot amount to a valid ground for review.  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.

18.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.

19.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

20.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.

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

Disposition

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

Dated 30 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