Nguyen Thi Hien and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 768/2019

[2023] HKCFI 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 768 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 applicants are husband and wife. They apply for leave to apply for judicial review of the Decision dated 28 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicants 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 their joint 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 applicants are nationals of Vietnam. The 1^st applicant wife entered Hong Kong illegally on 31 August 2014 and surrendered herself to the Immigration Department on 3 September 2014. On 23 September 2014, she lodged a non-refoulement claim. The 2^nd applicant husband entered Hong Kong illegally on 23 December 2014 and surrendered himself to the Immigration Department on 8 January 2015. On the date of surrender, he lodged a non-refoulement claim. By way of a written submission dated 24 June 2016, the applicants requested to have their non-refoulement claims jointly assessed. Their claims were made on the basis that, if refouled, they would be harmed or killed by the creditors.

5.The applicants incorporated a real estate company in around May 2008. In support of the business operations, the applicants borrowed loans from two banks in May 2008 and February 2009 respectively. However, they suffered economic downturns and the business deteriorated. The applicants were unable to repay the banks. As a result, in September 2009, the applicants borrowed a loan from Phuong with the hope to rescue their business. Yet, their business again failed. They had to take out a loan with Thuan in October 2010 to repay Phuong. However, the loan was still insufficient. In June 2011, the 1^st applicant defrauded their friend Bui and sold Bui’s car to repay Phuong. Thereafter, Bui reported to the police. Starting in July 2011, the creditors visited the applicants’ house, threatening and assaulting them for repayments. Out of fear, the applicants eventually fled to Hong Kong for protection. Details of their claims are set out at paragraph 8 of the Notice of Decision dated 16 November 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicants’ claims as the level of risk of harm was assessed to be low. In elaboration, the Director found that (i) the creditors’ threats, if any, were localized [14.1]; (ii) the dispute with the creditors was a private one without state involvement [14.2]; (iii) the past experience showed that the creditors had no intention to harm or even kill them [14.3]; (iv) the creditors did not harm their family members [14.4]; (v) Bui’s report to the police was the consequence of the 1^st applicant’s theft and there was no indicate that she would not receive a fair trial if refouled [14.5]-[14.7]; (vi) state protection would be available to them [15]-[20]; and (v) despite the debts and the theft, the applicants were able to stay in another village trouble free, leading to the conclusion that internal relocation was a viable option for them [21-[29].

8.In the Notice of Further Decision dated 24 March 2017, the Director also found that their rights to life would not be violated and dismissed their claims on the ground of BOR2 risk (the “Director’s Second Decision”)[1].

The Board’s Decision

9.The applicants appealed the Director’s First Decision to the Board. An oral hearing was scheduled to be on 26 November 2018 for their appeals. However, the applicants were absent from the oral hearing. As the statutory limitation of 7 days for them to explain their absence expired, the applicants still failed to respond. As a result, the Board proceeded to assess their claims on paper [4].

10.At the outset, the Board rejected the 1^st applicant’s source of fear from Bui as it found that the 1^st applicant was a fugitive from justice and therefore she was not entitled to claim protection on this basis [2.4]. It focused on the applicants’ claimed fear of harm from the creditors.

11.The Board found that there was no evidence of state involvement [9]; that the injuries failed to attain a minimum level of severity [10]-[13]; and that the applicants were able to live in Hanoi for three years without encountering any problems and this fact indicated that the creditors had no intention to locate them everywhere. In this premise, internal relocation was a viable option for the applicants [14]-[20]. As a result, the Board rejected the applicants’ claims and dismissed their appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 19 March 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 if they are refouled, they would be more seriously harmed or killed by the creditors and their subordinates as they are unable to repay the debt. The local authority will also arrest them as they did not show up on the date stated in the Summons.

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 not valid to challenge the Board’s Decision.

18.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.

19.The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

20.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 21^st day of March 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