Ha Minh Thoai v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1312/2018

[2022] HKCFI 154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1312 of 2018

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 3 July 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 national of Vietnam. She entered Hong Kong illegally on 8 June 2015 and surrendered to the Immigration Department on 10 June 2015.  She lodged a non-refoulement claim on the same day.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor Nguyen Van Bo (“Bo”) and his followers because she was unable to repay the loan.  According to the applicant, she borrowed money from Bo in October 2012 for her business.  However, due to pandemic, her business failed and she defaulted the repayments.  In December 2013, Bo came to her house chasing for payments.  Initially, she and her husband were able to repay the interest but in 2014 her husband suffered brain injuries from a fall and she again defaulted the interest payments.  In 2014 and 2015, she received verbal threats from Bo and his followers and, on one occasion, she was attacked by Bo’s followers.  She suffered bruises in her arm and waist.  Out of fear, she fled to Hong Kong for protection.  Details of her story are set out in paragraph 7 of the Director’s Decision and paragraphs 2-8 of the Board’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 3 November 2016 (“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 her being harmed or killed by Bo or his followers was assessed to be low [13]; that state protection would be available to her [14]-[20] and that internal relocation was an option open to her [21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  An oral hearing was conducted on 24 May 2018, during which the applicant gave evidence before the Board.

9.The Board assessed the applicant’s credibility.  It found that the fact that the applicant did not seek protection as soon as she landed in Hong Kong might be damaging to her credibility [20]-[22].  It went on to identify several inconsistencies in the material aspects of the applicant’s evidence, to which the applicant offered no satisfactory explanations [23]-[36].  Thus, the Board concluded that, after considering the relevant country of origin information (“COI”) and the applicant’s evidence, her account of events was untruthful [37]-[40]. Further, the COI indicated that reasonable state protection was available to the applicant [50]-[58].  Since the Board found that there was no state involvement and that the applicant’s alleged injuries were assessed to be low, the Board rejected the applicant’s claim on all applicable grounds [42]-[77]. In any event, internal relocation to cities like Hanoi was available to the applicant [78]-[84].  Thus, the Board rejected her appeal.

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

10.The applicant filed Form 86 dated 6 July 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant repeated her story for her claim without specifying any ground in support of this application.

DISCUSSION

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

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.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.”

15.The applicant has not raised any valid ground to challenge the Board’s Decision.

16.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.

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

CONCLUSION

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

Dated the 14^th day of January 2022

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