Nguyen Van Anh and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1090/2019

[2022] HKCFI 2996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1090 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 oral submissions by the 1st Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The 1^st and the 2^nd applicants are mother and daughter. This is their joint application for leave to apply for judicial review of the Notice of the Decision dated 15 April 2019 of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board’s Decision). The 1^st applicant is the guardian ad litem of the 2^nd applicant, whose application relies upon the facts of the 1^st applicant.

2.The applicants include a minor, therefore, a hearing was fixed and the 1^st applicant appeared before this Court on 4 July 2022.

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, the Director of Immigration (the “Director”) is the interested party.

The applicants

4.The applicants are nationals of Vietnam. The 1^st applicant entered Hong Kong illegally on 25 July 2015. On 28 July 2015, she was arrested by the police for being a suspected illegal immigrant. On 25 August 2015, she lodged a non-refoulement claim. On 23 February 2016, she gave birth to her daughter, the 2^nd applicant in the present application, in Hong Kong. On 5 August 2016, the 1^st applicant lodged a non-refoulement claim on behalf of the 2^nd applicant. Their claims were made on the same basis that, if refouled, they would be harmed or killed by the 1^st applicant’s creditor, Nguyen Van Thanh (“Thanh”).

5.According to the 1^st applicant, in late 2014, she borrowed a loan from Thanh in support of her aquatic breeding business. Initially, the business went well. In around May 2015, a sudden tornado hit her farm and destroyed her business. She defaulted the loan payments. In early June 2015, Thanh started to chase for repayment. During the visits, she was assaulted once and sustained injuries. The report of the assault incident to the police was of no avail. Despite escaping to her parents’ house, the 1^st applicant was again located by Thanh. Out of fear, she fled to Hong Kong for protection. The 2^nd applicant’s claim based entirely on the 1^st applicant’s claim. Details of their claims are set out at paragraph 8 of the Notice of Decision dated 24 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered their claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed their claims as there were no substantial grounds to believe that the applicants would be harmed or killed upon refoulement. In elaboration, the Director found that (i) the alleged injuries against the 1^st applicant failed to attain a minimum level of severity [14]; (ii) Thanh and his men had no real intention to harm or even kill the 1^st applicant [15]; (iii) the threats from Thanh, if any, were localized [16]; (iv) the risk of harm from Thanh if refouled was speculative [17]; (v) state protection would be available to them [18]-[21]; (vi) internal relocation was also a viable option for them [22]-[23].

The Board’s Decision

8.The applicants appealed the Director’s Decision to the Board. On 27 March 2019, the Board conducted an oral hearing for their appeals, during which the 1^st applicant testified for herself and on behalf of the 2^nd applicant with the assistance of an interpreter [45].

9.The Board tested the 1^st applicant’s evidence against the objective information provided in the country of origin information (“COI”), in particular the activities of the loan sharks [46]-[122]. Having considered the evidence, the Board found that it was implausible that Thanh would lend the 1^st applicant the said sum [123]-[124]; that the 1^st applicant’s evidence on the details of the aquatic breeding business was inconsistent and contradicted with the COI [125]-[135]; that it was not plausible that Thanh would send someone to chase the 1^st applicant down in Hong Kong [180]; that it refused to accept the 1^st applicant’s assertion that she ceased contact with her family in the Vietnam in fear of her family being monitored by the loan shark [184]; that state protection would be available to them [185]-[189]; and that internal relocation to Ho Chi Minh City was also a viable alternative [190]-[203].

10.In the premises of the aforesaid findings, the Board found that the 1^st applicant’s claim lacked credibility and thus rejected the applicants’ claims. Their appeals were therefore dismissed.

Application for leave to apply for judicial review

11.The applicants filed Form 86 on 24 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the 1^st applicant’s affirmation in support of their joint application, she reiterated her story of coming from Vietnam to Hong Kong.

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 applicants’ 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she wants to stay in Hong Kong with her daughter because she cannot pay off her debt in Vietnam.

15.It is clear that the Director and the Board had considered the applicants’ claim as a composite claim without separate consideration for the 2^nd applicant specifically.

16.However, in paragraph 204 of the Board’s Decision, the Board, after a comprehensive analysis of the facts of the case, came to its conclusion:

“I do not consider the 1^st Claimant to be a credible witness in general. I do not accept the substance of her narrative to be true. By way of illustration, I do not accept that the 1^st Claimant had ever been the proprietress of an aquatic farm. I do not accept that the 1^st Claimant had obtained any loan from Thanh. I do not accept Thanh to be a real, as opposed to be a fictitious, character. I do not accept that the 1^st Claimant had ever been ill-treated, assaulted or threatened by Thanh and his men. I do not accept that the 1^st Claimant had made a complaint to the police of Vietnam. I do not accept that the 1^st and 2^nd Claimants will be at any risk whatsoever.”

17.The Court of Appeal in Raj & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 77, 18 January 20 held:

“21. In the present case, the 2^nd and 3^rd Applicants’ claims were premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, disbelieved her and rejected her claim. We do not see any material that may give rise to a concern that there may be non refoulement grounds that relate specifically only to the 2^nd and/or 3^rd Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.”

The Court of Appeal upheld the Judge of the Court of the First Instance’s decision as pointed out in the Court of Appeal’s judgment:

“11. Pausing here, it is of note that although the Board did not appear to have considered the 2^nd and 3^rd Applicants’ claims separately from their mother’s claim, the Judge considered that in view of the Board’s finding that there were no genuine fear or risk of harm in relation to the 1^st Applicant, it was unnecessary for the Board to consider the impact of such fear and risk in relation to the 2^nd and 3^rd Applicants which called for protection.”

18.The Court of Appeal had also made the same decision on the same bases in Nguyen Ngoc Thiem & Others v. Torture Claims Appeal Board and Director of Immigration [2022] HKCA 1119, 3 August 2022 at §§16-19 and in Yuni Agustin Ningsih and Bhagat Michelle Vania v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 1121, 3 August 2022 at §§22 – 25.

19.The rationale of the above Court of Appeal cases applies to the present case. The 1^st applicant’s claim fails because the Board disbelieved her evidence and rejected her claim. I cannot see any child specific issue which should have, but have not been advanced to the Board because of lack of legal representation for the 2^nd applicant before the Board. It follows that the 2^nd applicant will not succeed in her claim alone.

20.The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

21.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.

22.The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

23.I treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity under Order 2 of the RHC without rendering the 2^nd applicant’s appeal a nullity. I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 29^th day of September 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