Bui Thi Ha v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 2002/2018

[2022] HKCFI 156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2002 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 14 September 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 on 17 July 2015 and was arrested by the police on 8 October 2015.  She lodged a non-refoulement claim on 16 November 2015. 

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor Dinh Van Cuong (“DVC”) for her default in repaying the loan.  According to the applicant, she borrowed money from DVC for her family’s seafood business in June 2013.  However, her business collapsed and she started to default the repayment.  Since 20 June 2015, DVC and his followers imposed death threats and also assaulted the applicant and her husband on one occasion.  Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 6 of the Notice of Decision dated 1 September 2016 by the Director (“Director’s First Decision”) and paragraphs 2 to 7 of the Board’s Decision. 

The Director’s Decisions

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 the Director’s First Decision, the Director refused her claim on the grounds of Persecution risk, BOR3 risk and Torture risk for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed or killed by the creditor was assessed to be low [11]-[13]; that state protection would be available to her [14]-[17] and that internal relocation was an option open to her [18]-[22].  In a Notice of Further Decision dated 18 April 2017, the Director also rejected her claim on BOR2 risk (“the Director’s Second Decision”).  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

The Board’s Decision

8.The applicant appealed the Director’s Decisions to the Board.  The oral hearings were held on 8 March 2018 and 9 August 2018 respectively, during which the applicant answered the Board’s inquiries.

9.The Board considered the applicant’s credibility.  It identified several aspects that would damage the applicant’s credibility.  First, the fact that the applicant did not seek protection as soon as possible when she entered Hong Kong undermined her intention to seek protection [19]-[20].  Secondly, the applicant’s claim had no documentary support [21].  Thirdly, the applicant’s clarifications as to her debt and her creditor were unsatisfactory [23]-[30].  Fourthly, the applicant failed to submit any evidence to prove the assault from DVC or that DVC was as influential as she claimed or that DVC had pushed her father who subsequently died [31]-[35].  Thus, the Board found that the applicant was an untruthful witness.  In any event, state protection and internal relocation to cities like Ho Chi Minh were available to the applicant [48]-[57]; [79]-[85].  Thus, the Board rejected her claim on all applicable grounds [41]-[78] and dismissed her appeal.    

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

10.The applicant filed Form 86 dated 21 September 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 in support of her claim.  She further said the Board’s Decision that she would not be harmed or killed if she return to Vietnam was unfair.

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 failed to raise 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 grant 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