Tran Thi Nguyen v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2370/2018

[2022] HKCFI 3143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2370 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 19 October 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 24 December 2013. On 9 January 2014, she surrendered to the Immigration Department. On 17 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 her creditor Hieu.

5.According to the applicant, in 2006, she and her husband borrowed a loan from Hieu for their mining business. In 2007, the business deteriorated. The couple had multiple debts and started to default payments for Hieu’s loan. From the end of 2007 to early 2008, Hieu visited their house, constantly demanding for repayments of the loan. During the visits, her husband was assaulted twice and he was also forced to work for Hieu. Since her husband started working for Hieu, Hieu ceased to visit their house. In early 2013, her husband became abusive and often assaulted her for not giving him money. Out of fear, she fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 25 August 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.The Director considered the applicant’s claim 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 First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from Hieu or her husband indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[20]; and (v) internal relocation was a viable alternative [21]-[26].

8.For reasons set out in the Notice of Further Decision dated 3 March 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed her claim on BOR 2 risk (the “Director’s Second Decision”).

9.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

10.The applicant appealed the Director’s Decisions to the Board. On 1 June 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence [23].

11.The Board considered the applicant’s story to be internally and adequately consistent in relation to the loan shark and the domestic violence [44]. The Board found that the dispute with Hieu was private in nature and that the applicant had already ceased contact with her husband, hence she feared no more domestic violence. Further, the country of origin information revealed that state protection would be available to her [45]-[64]. Thus, the Board rejected the applicant’s claim on Persecution risk. For the same reasons, the Board also rejected the applicant’s claim on the remaining grounds. The applicant’s appeal was therefore dismissed.

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

12.The applicant has filed Form 86 dated 26 October 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant repeated her story of coming to Hong Kong. She had not set out any specific ground.

DISCUSSION

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

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

16.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.”

17.The story in paragraph 13 above had been considered by the Board. There is no valid ground to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 1^st day of November 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