Hoang Thi Ngoc v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1676/2019

[2021] HKCFI 3877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1676 of 2019

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 P. Li:

1.      Extension of time for application for leave to apply for Judicial Review be refused; and

2.      Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The applicant was arrested by the police on 14/5/2014. She claimed to have sneaked into Hong Kong on 10/4/2014. She served imprisonment of 15 months for the offence of using a forged identity card.[1] She filed the non-refoulement claim in this case on 12/6/2014.

2.The basis of her claim was that she would be harmed or killed by the loan sharks.  She was unable to repay the debt. There was a long history of domestic violence by her husband. He would harm or kill her.

Background

3.The applicant was born on 6/3/1963 in Tien Thanh village, Hai Phong, Vietnam. She had education for 10 years. She was married with 3 sons. They were in Vietnam. She had not joined any organization in Vietnam. She was a farmer and hawker. Her husband was an alcoholic and heavy gambler. He was violent. He assaulted her occasionally when she did not give him money.

4.Since 1990, her husband had been borrowing from various loan sharks to satisfy his drinking and gambling habits. She tried to borrow money to repay his debt but it accumulated. It was due to the high interest rate. Her husband would assault her whenever she failed to repay the interest.

5.On 17/7/1997, she and her children were badly assaulted by her husband. She had bruises all over her body. She committed suicide as she was helpless. She was treated by a nurse from a local clinic. She recovered in a month.

6.One day in March 2004, she was assaulted badly by her husband because of the misconduct of his youngest son. Her left eye was swollen. There were bruises over her body. She applied herbs and it took a week to recover. She did not report to the police who would not bother as domestic violence was common.

7.She had once applied to work in Taiwan. Her husband frustrated the plan by tearing all documents and passports.

8.In mid-2005, she left home to work in a candy factory in Ho Chi Minh City. She was safe without any disturbances from her husband and the loan sharks. She returned home by the end of 2005. The domestic violence resumed. She did not divorce her husband for fear of harm to her children.

9.One evening in June 2006, her husband asked her for money. In the heat of an argument, he tried to strangle her. She managed to escape and stayed with her parents for a month. She returned home but the violent situation remained the same.

10.On 3/4/2010, her husband assaulted her again because of the debt. He rubbed her face against the concrete floor. Her face, eyes, arms and legs were swollen. She sought help from the chief officer of the village commune police (“Phong”). She was hospitalised for one day. Eventually, she stayed with her parents and recovered in a month.

11.On Phong’s advice, she applied for divorce at the Thuy Nguyen People’s District Court. However, her husband refused to sign the divorce documents. The divorce proceeding was stalled. She thought it was due to the connections of her husband with the village authorities. She could not afford a bribe though no one asked for any. Subsequently by the end of 2010, she returned home. The domestic violence resumed.

12.One evening in February 2012, her husband forced her to have sex imitating some sex video scenes. She felt great pain and humiliation. She escaped from home at the end of February 2012 when her husband tried to repeat the sexual abuse. She stayed with a friend for 15 days. She applied for a visa to go to China but returned after 1 day as she was unable to find a job. She worked as a cook in Mong Cai until February 2014. She remitted VND one million [2] to her husband to support her youngest son. She was safe in Mong Cai. There was no trouble from her husband and the loan shark.

13.She sneaked into China on 8/4/2014 with the help of a friend. She then went to Shenzhen. She subsequently sneaked into Hong Kong on 10/4/2014. She did not apply for protection immediately. She was led by a person who took her to work and earn money to repay the fee.

14.Her right ear was completely deaf due to the assault by her husband. She did not think the police in Vietnam could protect her. She could not relocate as the loan sharks had extensive network to trace her. She was ignorant about various channels which could help.

The decision of the Director of Immigration

15.The Director concluded that the risk of harm from her husband and the loan sharks was low. He pointed out the following reasons:[3]

(a)     The applicant had an unhappy marriage. She was assaulted by her husband several times from 1997 to 2010. However, she could recover within short time.  The injuries were not serious. They did not attain ‘a minimum level of severity.’  

(b)     While she was persistently assaulted by her husband, she remained the main bread winner of the family. She left her husband and worked at Mong Cai from March 2012 to February 2014. She was safe there. There was no evidence that her ability to work was affected. The documents submitted by her could not advance her case.

(c)     It was a private loan dispute. There was no evidence that any public official was involved. There was no evidence that the loan sharks would use his resources to locate her anywhere in Vietnam. In fact, the loan sharks had never assaulted her.

(d)     The loan sharks had not harmed her husband and her sons. According to her evidence, she seldom encountered them. There was no evidence that they had tried to track her down.

(e)     The applicant chose not to report her husband to the police. There was no evidence that the police or government authorities would not assist the applicant had they learned about the conduct of her husband.

(f)     The Director pointed out that the Vietnam government did not enforce the law effectively.  There were corruption and abuse of power. Public officials and the police had violated the law with impunity. There were serious problems of extortion by loan sharks. Despite these problems, there was an established police force. Their conduct was reasonably monitored by the government. Foreign governments had been assisting in training provincial police. The new Anti-Corruption law required senior officials to declare their income and assets. There were news reports that public officials were punished for corruption. The government was determined to tackle discrimination against women. There were supports from NGO for victims of domestic violence. The Director found that there was reasonable State protection.

(g)     Internal relocation was permissible under the law in Vietnam which was a large country with a population of nearly 94 million.  It was not unduly harsh for the applicant to relocate to Ho Chi Minh City and Mong Cai.

16.The Director rejected the applicant’s claim on BOR 3, persecution and torture risk grounds on 25/5/2016.[4] The Director also rejected her claim on BOR 2 ground on 2/3/2017.[5]

The decision of TCAB

17.An oral hearing was held on 27/9/2018. The Adjudicator pointed out various aspects of her evidence which showed that she was not truthful. The adjudicator rejected her account of background. The following is the reasons:[6]

(a)     The applicant only raised her claim on 12/6/2014. It was more than a month after she sneaked into Hong Kong. She did not raise her claim before her arrest on 14/5/2014. She used a forged identity card. All these damaged her credibility.[7]

(b)     The denouncement letter asserted the ill-treatment of her youngest son by her husband. In the TCAB hearing, the applicant said her youngest son resided with her husband since she left Vietnam. There was no evidence of further ill-treatment. The other letters only repeated the applicant’s assertion in the denouncement letter. They were obviously not by independent assessment.

(c)     The photograph submitted by the applicant proved that she sustained some injuries. However, it could not prove the identity of the attacker. It could not prove how the injuries were caused. It boiled down to the credibility of the applicant.

(d)     The applicant asserted that the plan to go to Taiwan was aborted as her passport was torn by her husband in June 2004. The adjudicator did not accept this explanation. The applicant could have continued with the plan later.

(e)     The applicant told the adjudicator that she could earn more at Ho Chi Minh City in 2005. She continued to remit money back to her husband. However, she explained that she returned home as her son begged her. Besides, her husband wanted to have sex with her. This was inconsistent with her assertion that she determined to leave home to make more money. In fact, she knew her husband had patronised prostitutes.

(f)     The applicant gave up her plan to Taiwan. She returned home after staying safely for 6 months at Ho Chi Minh City. The adjudicator opined that this showed that she was not in fear of her husband as asserted. Further, her evidence as a whole, in particular the injuries, could not support that the assault had persisted for a long period.

(g)     There was no evidence that the loan sharks had assaulted her. It was not the intention of the loan sharks to kill her either. 

(h)     When she worked at Mong Cai in 2012. She was not harassed by the loan shark. The adjudicator did not accept that it was because she had repaid the debt. Had she wanted to support her sons, she could have sent money directly to them. All her sons were adults. Yet, she chose to send to her husband whom she decided to stay away. The adjudicator concluded that she was not harassed because the influence of the loan sharks was localised.

18.The adjudicator rejected the applicant’s version of facts. The adjudicator found that there was no real risk of harm. He rejected the claims of the applicant on all applicable grounds on 1/11/2018.[8]

Judicial Review

19.The applicant applied for leave for judicial review on 18/6/2019. She was nearly 4½ months out of time.  In her affirmation in support of the leave application, she submitted the following:

(a)     A photograph showing her injuries.[9]  She disagreed with the TCAB conclusion on the evidential value of the photograph.

(b)     She criticised the TCAB for relying on the COI information on corruption in Vietnam. She alleged that it was inaccurate. She cited certain news report that the premier of Vietnam resigned because of corruption in Vietnam. She also supported her assertion by some other reports.[10]

(c)     She criticised the TCAB for rejecting her BOR 2 claim solely because she did not submit further evidence.

20.I have the following comments on her criticism above:

(a)     The adjudicator concluded that the applicant was not truthful. His reasons are summarised above. The photograph itself could only prove she had injuries as shown. The causes of the injuries are issues of credibility. Given that the adjudicator disbelieve the applicant, the photograph cannot take her case any further.

(b)     The COI relied on by the adjudicator were from various State agents such as US Department of State, UK Home Office, UN and World Bank. They were accepted authentic sources. The authenticity of the reports cited by the applicant were incomparable. In any event, the adjudicator accepted that there were various problems in Vietnam, however, the government had tried to improve the situation. Despite the problems, the Vietnam government could protect its nationals.

(c)     The TCAB dismissed the BOR 2 claim based on the evidence already submitted by the applicant.

21.The adjudicator had considered the evidence in detail. The inconsistencies set out above were serious. The adjudicator was justified in rejecting the factual basis of her claim. I agree with the decision of the adjudicator.  There is no error of law or procedure.

22.In my judgment, the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.

23.The applicant was out of time in filing the leave application by nearly 4½ months. She did not explain.  In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [11]

24.The delay is substantial. There is no explanation. As analysed above, the intended judicial review is of no merit.

25.In the circumstances, there is no good reason for extending the time for the leave application. I also refuse leave for the intended judicial review.

Dated the 28^th day of December 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

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