Dang Thi Mai Thi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1417/2022

[2023] HKCFI 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1417 of 2022

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 15 November 2022 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 and was arrested by the police on 27 January 2021. On 7 September 2021, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark, Nguyen Van Cuong.

5.In brevity, the applicant borrowed a loan from Cuong for her mother’s surgery in mid-2019. As a condition of the loan, the applicant had to take nude pictures. As long as she made payments on time, the photos would be kept confidential. The applicant and her father had been making timely payments until 2020 when the pandemic hit. Due to the pandemic situation, the applicant’s family income worsened and they were unable to afford the loan payments. Initially, Cuong only verbally threatened her and sent his people to verbally assaulted her and her father. That evening, they assaulted and humiliated the applicant. Thereafter, the loan shark forced her to work in Hong Kong. The applicant had no choice but complied with the request. She was arranged to work in a massage parlour in Hong Kong, making payments to Cuong from her salary until January 2021 when she stopped working in the parlour. Since there was still outstanding loan, and Cuong did not stop harassing her family, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 3 November 2021 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 was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) it was a mere speculation that the loan shark was powerful and influential or that he could locate the applicant everywhere [13]-[14]; (iii) state protection would be available to her [15]-[17]; and (iv) internal relocation was a viable option [18]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 9 November 2022, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of a Vietnamese interpreter [6].

9.The Board found that the applicant’s evidence was broadly consistent and accepted her as a witness of truth [25]-[26]. It proceeded to consider her claim in light of the applicable grounds. The Board noted that the applicant’s claimed indicated a likelihood that she might be a victim of human trafficking, an issue of which was not explored by those representing the applicant and by the Director [28]. The Board did not make a formal determination as to whether the applicant was a victim of human trafficking. Yet, it considered that such issue was material to the question that whether the applicant would face future risk of harm [29]-[30].

10.The Board gave the applicant the benefit of doubt and proceeded on the basis that she could not access reasonable state protection in her home area as a former victim of trafficking in the context of irregular debt [31].

11.However, the Board considered that internal relocation was a viable option for the applicant. It noted that the threats from the loan shark and his underlings were localized and that there were organizations that assisted victims of human trafficking in Hanoi. As a result, the Board found that the applicant could relocate to another area where she could avoid the risk of harm from the loan shark [32]-[36].

12.For 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

13.The applicant has filed Form 86 dated 6 December 2022 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant did not set out any specific ground.

DISCUSSION

15.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).

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

17.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.”

18.The Board accepted the applicant’s evidence and it had also taken into consideration the issue of human trafficking, which was not canvassed by her lawyer or the Director. It had, nevertheless, came to a conclusion that internal relocation is available to the applicant. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 held:

“31. … … This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. …”

19.The applicant has raised no valid ground to challenge the Board’s Decision. 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.

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

CONCLUSION

21.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 11^th day of April 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