Case Document

100%Judiciary

HCAL 87/2019

[2023] HKCFI 380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 87 of 2019

BETWEEN
	Nguyen Thi Thuy	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 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 8 May 2016 and surrendered herself to the Immigration Department on 10 May 2016. On the date of 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 creditor Vu Thi Lan, and the creditor’s husband Tien.

5.In short, the applicant borrowed a sum from the creditors in 2008 to support the cash flow problem of her clothing business. However, her business suffered losses and she was unable to repay the loan by the end of 2011. In January or February 2012, her business closed down. One month later, the creditors started to threaten and assault her for her failure to settle the loan. After the first attack in April 2012, the applicant escaped to her friend’s place. From 2012 to 2015, she met the creditors and begged them to extend the payment deadlines. However, her income was far from sufficient to settle the loan. In the beginning of 2016, the creditors visited her friend’s place and assaulted her. Out of fear, the applicant fled to Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 11 November 2016 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 her claimed fear of harm from the creditors was groundless. In elaboration, the Director found that (i) the dispute was private in nature and, on the evidence, the loan collection events did not support her claimed fear of harm [16]; (ii) state protection would be available to her [17]-[21]; and (iii) internal relocation was a viable alternative [22]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing for her appeal, during which she testified [4].

9.The Board found that there was no evidence of state involvement [7]-[9]; that the alleged injuries did not attain a minimum level of severity [10]-[13]; that the internal relocation was proven to be a viable option as shown in the country of origin information [14]-[19]. For these reasons, the Board rejected the applicant’s claim on the ground of Torture risk. In light of these findings, the applicant’s claim on the remaining grounds also failed. Independently assessed, the applicant’s claim was found to be unreliable [31]-[35].

10.Therefore, 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 that the creditor and his subordinates will inflict more serious threat and physical harm on her or even kill her as she has no money to repay her.

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 not valid to challenge the Board’s Decision.

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 7^th day of March 2023

(M.O. WONG)(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 7/3/2023 Nguyen Thi Thuy 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 7/3/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5266/16/11/205/V631 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2214/16 (Formerly RBCZ 11815/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)