Dinh Thi Chuyen v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 68/2019

[2023] HKCFI 302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 68 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 7 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. She entered Hong Kong illegally on 26 July 2016 and was arrested on the next day. On 2 August 2016, 23 August 2016 and 24 August 2016 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 Nguyen Thi Tuyet (“Tuyet”).

5.The applicant’s claimed fear of harm from Tuyet arose from a loan dispute. She borrowed a loan from Tuyet in early 2014 for her clothing store business. However, after five months of paying interests, she started to default. Initially, Tuyet agreed to extend the deadline for repayments. However, a few days later, Tuyet visited her shop and threatened to kill her if the loan was not settled. Since she was still unable to repay the loan, Tuyet had been threatening her and, in one incident, attacked her and her husband. She even took all the properties from the applicant’s house in early 2015 to settle the loan. 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 16 March 2017 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 refoulement was assessed to be low. In elaboration, the Director found that (i) the injuries sustained by the applicant failed to attain a minimum level of severity and she was able to stay in another village worry-free before her flee to Hong Kong [11]-[12]; (ii) state protection would be available to her [13]; and (ii) internal relocation was a viable option [14].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 6 November 2018, the Board conducted an oral hearing for her appeal.

9.Having considered the applicant’s evidence, the Board identified several significant inconsistencies. For example, the applicant provided different versions as to her work experience and her start-up fund for her clothing business [13]. She was also inconsistent with the details of the loan and the subsequent loan collection incidents [13]. Even if the Board accepted her evidence, it found that the injuries sustained failed to attain a minimum level of severity [14]. As a result, the Board concluded that her claim lacked credibility [14]. Further, the Board found that state protection and internal relocation were both viable alternatives to the applicant [15]-[16]; [31]-[34].

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 9 January 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said she fears that the money and his underlings will inflict more serious threat and physical harm on her or she will be killed because she does not have money to repay the debt.

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 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 grounds in paragraph 12 above are her opinions and speculations. The Board has already rejected her evidence on the facts of her case. There is no valid ground to challenge the Board’s Decision.

17.The Court therefore 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 13^th day of February 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