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

HCAL 2706/2018

[2021] HKCFI 1499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2706 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and Applicant being absent 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.The applicant applies for leave to apply for judicial review of the Decision dated 15 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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.

3.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.

The applicant

4.The applicant is a Vietnamese national.  She came to Hong Kong illegally on 26 September 2015.  She was arrested by police on 29 September 2015.  She lodged her non-refoulement claim with the Immigration Department on 2 October 2015.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she was unable to pay off her debt.  She had borrowed 200 million Vietnam currency from a loan shark for her fish farm business.  She was unable to pay the interest or the capital shortly after the drawdown of the loan.  The loan shark had gone to her house three times and demanded payment, threatening her that if she was unable to repay her loan, they would kill her and burn down her house.  On two occasions, the loan shark and her people smashed the furniture in her home and hit her back with sticks.  She suffered injuries, but she did not report the matter to police.  She took her friend’s advice and came to Hong Kong.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered her 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 8 May 2017 (“the Director’s Decision”), the Director refused her claim for the reason that the level of risk of being harmed or killed by the loan shark if she returned to Vietnam was assessed to be low [10 & 11]; that state protection would be available to her [12] and that internal relocation was an option open to her [15].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  The Board, having considered the authority of ST v Betty Kwan CACV 115/2013, decided not to hold a hearing for the applicant and dealt with the appeal on paper.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  Whilst the Board did not have doubt in her story, it nevertheless held that the loan was a personal business between the applicant and the loan shark without state involvement [20] and the attacks did not fall within the context of section 37U of the Ordinance; that there was no evidence to show that the Vietnam government was unable to render protection to her if she returned to Vietnam [32]; that the applicant’s case had nothing to do with BOR 2 risk [35]; that her case did not pass the lowest threshold of BOR 3 risk [39]; that her case did not fall within the ambit of Persecution risk Convention [43] and that internal relocation was an option open to her [48].

Application for leave to apply for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 29 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that the Board was unfair to say that she would be safe to return to Vietnam given the facts she had told the adjudicator.

DISCUSSION

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

13.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.”

14.The Board has given its reasons in support of its conclusions as to the facts of the case.  The applicant is unable to explain why she said in her affirmation the Board was unfair.  Her opinion does not assist her application.

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

Dated the 2^nd day of June 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