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

HCAL 494/2019

[2022] HKCFI 1687

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 494 of 2019

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 February 2019 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 last entered Hong Kong illegally on 26 November 2012 and was arrested on 2 December 2012. On 24 March 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by Vietcom Bank (“the Bank”) and the loan shark, Nguyen Van Long (“NVL”).

5.According to the applicant, she borrowed a loan from the Bank to expand her coal business in April 2005. Due to policy reason, the applicant’s business collapsed. Thereafter, the Bank demanded repayments or otherwise would confiscate all her assets. The applicant had no choice but to take out loan with NVL to set off her husband’s medical expense and also the bank loan. In October 2007, the Bank sent the triad members to threaten the applicant. The applicant then escaped to Hong Kong for the first time. When she was deported back to Vietnam, she learnt that NVL posted an advertisement on the television about her default and threatened to kill her if she failed to repay. Out of fear, she fled to Hong Kong for a second time for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 28 June 2018 by the Director (the “Director’s Decision”) and paragraphs 28 to 51 of the Board’s Decision described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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 way of the Director’s Decision, the Director refused to accept that she would face any real risk of harm upon refoulement. The Director elaborated that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[14]; (ii) state protection would be available to her [15]-[18]; and (iii) internal relocation was a viable alternative [19]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 4 January 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [7].

9.The Board considered the applicant’s evidence to be inconsistent, implausible and inherently unreliable. For example, the applicant provided inconsistent accounts as to the purpose of the second loan [57]. She based her evidence about being chased by triad members on hearsay information [58]-[59]. Her claim that she was injured by NVL’s wife was not presented before the Director and the Board refused to accept her explanation for the omission [61]. The Board also disbelieved the applicant’s evidence that NVL would advertise his intention to commit murder on national television [62]. It further considered the applicant’s evidence to be contradictory as, on one hand, she claimed to cease contact with her family and, on the other hand, she claimed to learn the threats from her mother [63]. These inconsistencies had greatly undermined the applicant’s credibility.

10.Thus, the Board, while accepting that the applicant might have taken out the loans, rejected the applicant’s claim that she was ever threatened or harmed by the Bank or loan shark [68]. In any event, having considered the country of origin information, the Board found that state protection and internal relocation were both viable alternatives for the applicant [84]-[94]. For the above reasons, the Board rejected her claim and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 20 February 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant stated that the Board was unfair in that it did not have medical check-up for her injuries; that it picked on unimportant inconsistencies as the basis to reject her claim, cherry-picking evidence not in her favour; and it was prejudicial to the applicant as it took the unimportant inconsistences as the basis to disbelieve her case generally.

DISCUSSION

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

15.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.”

16.The applicant’s grounds in support of her application are not valid grounds because the Board was entitled to take into consideration of the inconsistencies of her evidence in its evaluation of the credibility of her evidence. Whether the inconsistencies are unimportant is for the adjudicator to assess. There is no concrete evidence to show that the adjudicator was unfair or prejudicial or being influenced by other factors than the evidence to form his opinions and conclusion. From the Board’s Decision, the issue of medical examination for her injuries was ever brought up for the Board’s consideration.

17.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.

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

CONCLUSION

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

Dated the 23^rd day of June 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