Dao Thi Bich Lien Alias Dao Thi Dung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 986/2019

[2023] HKCFI 1695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 986 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 8 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing and her application is dealt with 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 10 April 2016 and surrendered to the Immigration Department on 12 April 2016.  On 25 May 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 three creditors, named, Tuyet, Xuan and Thang.

5.According to the applicant, she borrowed loans from the three creditors in early 2014 to start her own trading business.  The loan agreements denoted that she would have to repay the loans within one year.  In middle to late 2014, her goods were confiscated two or three times and her business had suffered a significant loss.  As a result, she was unable to repay the loans. In late 2014, Tuyet and some men went to her house asking for repayment.  They assaulted the applicant.  There were two subsequent incidents in which Tuyet scolded and threatened her without harming her.  Xuan and Thang only made verbal threats through phones.  The time when they visited the applicant’s house posing death threats, the applicant was not home.  Feared that the creditors would materialize the threats, the applicant fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 9 December 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 the level of risk of harm from the creditors was assessed to be low.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [11]-[12]; (ii) state protection would be available to her [13]-[15]; and (iii) internal relocation was a viable alternative [16]-[20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 13 February 2019, the Board conducted an oral hearing, during which the applicant testified with the assistance of an interpreter [19].

9.Having considered the applicant’s claim and her oral evidence [8]-[30], the Board made the following findings.  The Board accepted that the loan sharks in Vietnam preyed on the vulnerable persons [32]-[34].  However, the Board found that the applicant’s evidence on her trading business was vague and unpersuasive [35].  Her evidence on the business was also problematic [36]. Meanwhile, her evidence on the reasons of the loans and the details of the loan was inconsistent [37]-[38].  Further, her evidence on the alleged threats from the loan sharks was inherently contradictory [39].  In these premises, the Board cast doubt on the credibility of her claim [40].

10.On the basis of lack of credibility, 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 11 April 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 if she returns to Vietnam, she will face a genuine and substantial risk of being tortured or killed by her creditor and his men since she is insolvent.

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.For the reasons given, the Board rejected her evidence on the fact of the case. The grounds set out 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 30^th day of June 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