Le Thi Duc v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 81/2019

[2023] HKCFI 344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 81 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 6 November 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 last entered Hong Kong illegally on 17 January 2015 and surrendered herself to the Immigration Department on 22 January 2015. On the date of the surrender, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband, Nguyen Duc Thanh.

5.According to the applicant, one year into their marriage, Thanh became addictive to gambling and was unemployed. In July 2006, he started to demand money from the applicant and stated that money was the sole reason that he married her. In August 2006, Thanh physically abused her, resulting in her hospitalization. His abusive acts elevated in February 2007 when their family financial situation worsened. In the end of 2008, Thanh attacked her with a knife. Out of fear, she first fled to Hong Kong for protection in 2009. When she was deported back to Vietnam, she accepted her husband’s apology and lived with him again. However, in February 2012, her husband assaulted her again, and continued to be abusive. In November 2014, she was again attacked by her husband with a knife. Out of fear, she fled to Hong Kong again for protection. Details of her claim are set out at paragraph 6 of Notice of Decision dated 28 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 the minimum level of severity [15]; (ii) her husband had shown no real intention to cause serious harm or even kill her [16]; (iii) her conduct of returning to live with her husband and her failure to report to the police, as well as failure to lodge a non-refoulement claim in her first flee to Hong Kong, were inconsistent with someone who genuinely feared a risk of harm [17]; (iv) her problem with her husband was a domestic dispute without state involvement [18]; (v) state protection would be available to her [19]-[23]; and (vi) internal relocation was a viable alternative [24]-[30].

The Board’s Decision

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

9.The Board recapped the applicant’s claim and personal background [4]-[26]. It also considered the country of origin information (“COI”) [28]-[44] and the laws governing the non-refoulement claim [52]-[69]. Having considered the applicant’s evidence, the Board found that her accounts were not truthful [79]. Firstly, the Board noticed that the applicant claimed to have family financial difficulty in 2007 and thus it was inconceivable that her husband could obtain the money to spend on gambling and prostitutes [80]-[86]. Second, despite the claimed assaults which lasted for 8 years, she never reported the ill-treatments to the police nor did she seek protection when she first arrived in Hong Kong. Meanwhile, her claimed injuries were inconsistent with the medical treatments she subsequently received [88]-[93]. Third, she failed to seek protection in China nor did she seek protection in the first available opportunity in Hong Kong [94]-[97]. Fourth, her husband was not a state agent. Nor was there any evidence of state involvement [98]-[102]. When these materials aspects were inquired by the Board during the hearing, the applicant was unable to provide satisfactory clarifications or explanations [103]-[122].

10.As a result, the Board concluded that the applicant was not a credible witness [123]-[128]. Further, the Board found that the country of origin information supported a finding of availability of state protection [129]-[143]. In any event, internal relocation was an available alternative [176]-[186].

11.In light of the aforesaid findings, the Board rejected the applicant’s 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 9 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 said that she feared that she would be harmed or killed by her husband if she returned to Vietnam.

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 grounds in paragraph 13 above are her bare assertions or speculation. The Board had rejected her factual evidence. There is no valid ground to challenge the Board’s Decision.

18.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.

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 21^st 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