Dang Thi Thao v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1418/2018

[2021] HKCFI 932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1418 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 31 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 illegally on 6 July 2015.  She surrendered to the Immigration Department on 7 July 2015.  She lodged her non-refoulement claim on 7 July 2015 with the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor, from whom she had borrowed 800 million Vietnam currency for her coffee beans business in partnership with a person called Nguyen Van Hung. She gave the money to him. But he took the money and it was a scam. He was connected with politicians. She dared not report the matter to police. Her husband was also in trouble with the political people and was under investigation. The creditor took some people to her home to demand repayment of the debt. She was unable to do so. They then assaulted her by pulling her hair and hitting her back with wooden stick. She went to seek assistance from a doctor. It took two months to recover. The creditor and his people had come to her home to demand payment many times and each time she was assaulted. For her own safety, she had to leave Vietnam with her two daughters. She heard some friends saying that Hong Kong would provide asylum for people like herself. She therefore paid 15 million Vietnam currency to the agent to make the arrangement. On her way coming to Hong Kong, she had lost contact with her youngest daughter. Details of the incidents are set out in paragraph 22 of the Board’s Decision.

The Director’s Decision

6.The Director considered his 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 22 December 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of being harmed or killed by her creditor and his people if she returned to Vietnam was low [13]; that state protection would be available to her [18] and that internal relocation was an option open to her [26]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. The Board, having considered the relevant issues, decided to deal her appeal on paper.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)   According to her evidence, the assaults by the creditor did not amount to torture. [24]

(2)   The matter is concerned with private monetary dispute and has nothing to do with race, religion, nationality or political opinions. [25]

(3)   The state was not involved in the incidents and she was not disturbed by any state agents. [27]

(4)   For the reasons above, the applicant had no reasons in support of her non-refoulement claim. [28]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 19 July 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 killed by her creditor and his men because she was unable to pay back her debt.

DISCUSSION

11.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

12.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.”

13.Her ground in support of his application does not assist her application as the Board had found the facts to the contrary.

14.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.

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

CONCLUSION

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

Dated the 14^th day of April 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