Case Document

100%Judiciary

HCAL 30/2019

[2023] HKCFI 182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 30 of 2019

BETWEEN
	Nguyen Thi Duong	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 31 December 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. According to the immigration records, she was arrested by the police for being a suspected illegal immigrant on 1 March 2014. On 30 September 2014 and 4 December 2017 respectively, 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 Long and his people due to her outstanding loan payments.

5.According to the applicant, she borrowed a loan from Long in 2011 for her aquaculture business. However, suffering from the water pollution, her business failed. Despite her effort to borrow another loan to rescue the business, the business still collapsed. Since she defaulted the loan payment, Long started to chase for repayments. He and his people threatened to kill the applicant but they didn’t inflict any physical harms on her. Out of fear, the applicant fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 7 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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 Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) Long and his people did not exhibit any real intention to harm or kill her [14]; (iii) Long’s influence, if any, was localized [15]; (iv) state protection would be available to her [16]-[17]; and (v) internal relocation was a viable option [18]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 14 November 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries [50].

9.The Board considered the country of origin information (“COI”) and found that there were effective measures implemented by the Vietnamese government to combat, inter alia, illegal moneylending activities [29]-[32]. It also took into account the availability of internal relocation [33]-[35]. In assessing the credibility of her claim, the Board probed into the details of the material aspects of her claim [50]-[51].

10.After considering the evidence, the Board found that the applicant’s evidence largely based on her unsupported assertions; that the existence of the loan was in doubt; that Long’s harassment was not intense and he did not harm the applicant’s family; that her evidence on the alleged illegal immigration into Hong Kong was questionable; that her assertion that Long was influential and the police would not assist her as it was merely speculative; that there was no evidence on Long’s extensive network in Vietnam; that the COI showed that both state protection and internal relocation were available to the applicant; and that her failure to take out insurance to cover a business, in which she had no prior experience was unreasonable [52]-[64]; [71]-[72].

11.In light of the aforesaid inconsistencies, the Board found that the applicant’s claim was not reliable [66]. In assessing the individual grounds, the Board further found that the dispute was private in nature without state involvement [71]. As a result, the Board rejected her claim and dismissed her appeal.

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

12.The applicant has filed Form 86 dated 4 January 2019 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.

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 Decision 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 19^th day of January 2023.

(C.S. FUNG (Ms))
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19 January 2023 Nguyen Thi Duong Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19 January 2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12117/18/6/296/V2109 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2175/18 (formerly as RBCZ 10183/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)