Vu Hong Diep v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 69/2019

[2023] HKCFI 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 69 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 28 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 17 October 2016 and surrendered herself to the Immigration Department on the next day. On 29 December 2016, 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 Vu Van Vuong.

5.The applicant’s claimed fear of harm from Vuong arose out of a debt she owed to him. On 30 June 2016, she borrowed the loan for her cosmetic business. Yet, her business partner took the money and disappeared. Her business was then closed down and she defaulted the repayments. On 8 August 2016, she was kidnapped and attacked by Vuong and some men. She was also hospitalized after the attack. Thereafter, Vuong had been visiting her house and demanded for repayment with threats to send her to work as a prostitute. The report of these harassments to the police was of no avail. Out of fear, the applicant fled to Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 5 September 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 low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) Vuong and his followers had exhibited no real intention to harm or kill her [14]; (iii) state protection would be available to her [15]-[21]; and (vi) internal relocation was a viable option [22]-[28].

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, during which she testified with the assistance of an interpreter [27].

9.The Board considered the applicant’s claim and statements before the Director [7]-[25]. It also took into account her oral evidence during the hearing [26]-[45]. Having assessed all the evidence, the Board made the following findings. It noted that the applicant gave inconsistent accounts to two important matters, namely, the period of repaying the loan and the details of the assault incident [48]; [52]. The Board also cast doubt on the authenticity of the applicant’s loan agreement [49] and on the possibility that she was able to take out a loan of that sum given her lack of business experience [50]. As a result, the Board found that the applicant’s claim lacked credibility [52]. For these 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

10.The applicant has filed Form 86 dated 9 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that if she is refouled to Vietnam, the money lender and his subordinates will inflict more serious threat and physical harm on him, or even kill her since she does not have money to repay the debt.

DISCUSSION

12.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).

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

14.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.”

15.The Board had considered her evidence and did not believe it. The grounds in paragraph 11 above are not valid to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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