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

HCAL 709/2019

[2023] HKCFI 181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 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 5 March 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 22 June 2017 and surrendered to the Immigration Department on the same day. On 10 July 2017, 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 Thang (“Thang”).

5.According to the applicant, she borrowed a loan from Thang for her seafood business in May 2015. In the first ten months, the applicant was able to afford the interest payments. However, starting in March 2016, she defaulted the repayments as her business deteriorated. Thang agreed to extend her payment date to the end of 2016. Yet, she still failed to repay the loan. In the beginning of 2017, Thang visited her house and demanded for repayment. In early April 2017, Thang bribed the police to pressurize the applicant. The police confiscated her facilities for the seafood business and the relevant contracts. On the same day, they assaulted her. On the subsequent occasions, the applicant was assaulted but since Thang took some of her properties to settle the loan, the police ceased to come along. Out of fear, she eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 26 January 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 as the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm. Meanwhile, the creditor’s conducts didn’t exhibit any real intention to cause harm or even kill her [12]; (ii) state protection would be available to her [13]-[17]; and (iii) internal relocation was a viable alternative [18]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. After considering the documents and the relevant legal principles, the Board determined that her appeal could be fairly disposed on paper without an oral hearing [9].

9.The Board considered all the evidence. It noted that the applicant failed to provide any documents in support of the existence of the loan and the alleged incidents [32]. It found that the dispute remained a private one without state involvement [36]. Meanwhile, the injuries allegedly inflicted by Thang did not attain a minimum level of severity [37]-[38]. The Board further assessed the country of origin information and found that there was no evidence supporting the applicant’s assertion that the government would not offer protection to her [57]. In any event, internal relocation was a viable alternative [84]-[90].

10.For the above reasons, the Board rejected the applicant’s 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 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant set out the following issues to challenge the Board’s Decision.

(1)  Paragraph 12 said that the risk of her being harmed is low. She disagrees, saying that the creditor had increased violence after the first incident. She believes that she will be harmed or even killed if she returns to Vietnam.

(2)  She disagrees to paragraphs 13 and 14. Although there are COIs providing that the police in Vietnam are corrupt on the one hand, and on the other hand, the Vietnam government combat illegal lending business and use proper means to deal with private disputes, the fact remains that there is lack of transparency in government administration. The government supervision over the officials is at all times ineffective. It is highly possible that the officials have connection with the illegal business. She does not have confidence in the Vietnam government.

(3)  She disputes paragraph 15, which says that the loan is a private business between herself and the creditor. She believes it is highly possible that government officials are connected with the creditor.

(4)  She disputes paragraphs 18 to 24 on internal relocation. It takes very heavy burden for the family to move to live in another place. Besides, the elderlies in the family may not be able to adapt new environment, which will be a severe mental stress for them.

(5)  She takes issue with paragraph 29, which says that the case does not involve human rights issues. Although she was not injured bodily, she is suffering from immense mental stress for fear that the creditor may come to find her at any time if she returns to Vietnam.

(6)  She disagrees to paragraphs 37 to 40 on state protection. The fact that the police had confiscated her properties shows they are connected with the creditor. To report the matter to police is dangerous.

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, §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.

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.As to the grounds set out in paragraph 12, supra, grounds (1), (2) and (3) are her opinions or speculations without any evidence to support. Ground (4) is the issue on internal relocation. The Board had obviously considered the difficulty in moving to another place to live. However, if such option is a viable option, then Hong Kong government should not bear the burden of accommodating her or her family under the Convention[1]. Ground (5) cannot assist her because the mental stress she described does not reach the minimum level of severity under BOR 3 risk[2]. Ground (6) is the isolated incident, which cannot be applied across Vietnam as according to the COI, the Vietnamese government has been revising its policies on police corruption and its administration.

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 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.

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