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

HCAL 1117/2018

[2021] HKCFI 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1117 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 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 1971, is a national of Vietnam.  On 23 July 2015, 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 [3-12] 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 because she failed to repay the interest and loan that she borrowed for her garment business.  She claimed that in July 2014, she borrowed 500 million VND from her creditor who has a triad background.  When she could not repay the interest and loan in January 2015, her creditor and his followers came to her shop and attempted to rape her unsuccessfully as they were stopped by passer-by. On that occasion, they assaulted and threatened her with a syringe containing AIDS virus.  She fled to Hanoi but was still located by her creditor who again attempted to rape her and threatened her with a syringe with viurs.  She hid herself on a boat from February 2015 for a few months before she left her country for Mainland China.  She later sneaked into Hong Kong unlawfully.

The Director’s decisions

4.By notices of decision dated 5 August 2016 and 7 March 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 considered that the level of future risk of harm as low.  He also found that the availability of reasonable state protection and internal relocation option would further lower or negate the perceived risk of harm.  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 10 October 2017.

6.By a decision dated 26 March 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claimat para [34-74] of its decision.  In a nutshell, the Board found: the applicant did not suffer severe injury; the creditor did not intend to cause her severe injury; they aimed to pressurise for repayment of the loan; the applicant did not produce sufficient medical evidence for the Board to objectively assess that she suffered severe injury; and the ill-treatment did not reach minimum level of severity.  The Board further noted that her creditor was non-state actor and there was no evidence that any public official had any connection with the money dispute.  Moreover, she could stay in Vietnam uneventfully for 4 months before she left her country for China.  It also found that internal relocation alternative and reasonable state protection would further alleviate or negate any perceived risk.

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

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 15 June 2018 for leave to apply for judicial review of the decision of the Board.

10.In the supporting affirmation, the applicant mainly complained: the Board subjectively assessed that her injury was not severe on the basis that she had no medical evidence in support; the Director did not arrange a medical examination for her; she did not report to the local police of the incidents because they are corrupted; the Board did not properly consider the Country of Origin information and viability of internal relocation.  She attached a picture allegedly showing a scar on her head.

Discussion

11.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 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.

12.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 both decisions of the Director and the Board, 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 gave the applicant’s account of primary facts and events a favourable interpretation.  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 findings on the availability of state protection and viability of internal relocation.

14.As mentioned above assessment of evidence, the risk of harm and 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.

15.The complaints contained in the supporting affirmation of the applicant are without merits or evidence in support.  It is plainly open to the Board to find on the evidence before it whether the injury she sustained was of the severity required for protection she sought.  It was a finding within the province of the Board.  The Director did not challenge the alleged primary events, he was not improper in not arranging any medical examination for the applicant.  In any event, the photograph attached to her affirmation would not assist her to prove that the injury she sustained was very severe.  I do not agree that the Board had “subjectively” assessed her case or failed to consider the COI properly.  I also find that on the evidence in the present case, 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.

16.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

17.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 15 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

Form CALL-1