Dinh Thi Thui v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 958/2019

[2023] HKCFI 1793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 958 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 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decisions as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Vietnam. She entered Hong Kong illegally on 25 September 2014 and was arrested by the police on the same day. On 27 September 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditors for her outstanding debt.

5.In short, the applicant borrowed money from three creditors to help her sons with their fishing business. Since around May 2013, she had been paying 15 million VND per month for interests. The creditors did not specify a deadline for settling the loans. From June 2013 to April 2014, the applicant was able to settle the monthly interests. In April 2014, the fishing business collapsed and, since May 2014, the applicant and her sons had been defaulting the interest payments. As a result, the creditors started to chase for repayments. They sent drug addicts from the triad to collect the money. Meanwhile, according to the applicant, her sons were attacked on three occasions while she was attacked once in August 2014. Out of fear, she eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 10 August 2016 by the Director (the “Director’s First 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 First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm was assessed to be low. 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]-[13]; (ii) state protection would be available to her [14]-[16]; and (iii) internal relocation was a viable option [17]-[19].

8.For reasons set out in the Notice of Further Decision dated 24 July 2017, the Director also found that the applicant’s right to life would not be violated and dismissed her claim on BOR 2 risk (the “Director’s Second Decision”).

9.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. An oral hearing was scheduled to be on 31 January 2019. However, the Board was unable to contact the applicant, despite several attempts. On the same date, the Board sent a letter to the applicant, requiring her to explain her failure to attend the oral hearing. On 19 February 2019, the applicant wrote to the Board that her absence was due to the fact that she did not receive the notice of hearing from the Board. Having considered the circumstances, the Board refused to accept her explanation and proceeded to consider her appeal on the available documents [4].

11.The Board considered the applicant’s claim in light of the legal principles governing the non-refoulement claims. It found that the stated facts did not support a claim of state involvement [7]-[9]; that there was no evidence of physical or mental pain and suffering that attained the minimum level of severity [10]-[13]; that the country of origin information showed that she could avoid the risk of harm, if any, by relocating to other areas in Vietnam [14]-[18]; and that state protection was also available to her [23].

12.For the above reasons, 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 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant said that she will face a genuine and substantial risk of being subject to torture or even killed by her creditor and his men since she is unable to pay back the debt.

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 Decision 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 issue before this Court is whether the Board was entitled to determine the applicant’s appeal in her absence under the Ordinance.

19.According to the Board’s Decision [4.1] to [4.3], the Board called the applicant one day before the hearing date on 31 January 2019, trying to remind her of the hearing, but the line was suspended and cut off. The applicant did not attend the hearing on the scheduled date. The Board also called the applicant, but with the same result. The Board sent a 7-day statutory notice to her at her last known address, requesting her to explain her absence in accordance with Section 15 of Schedule 1A of the Ordinance[1]. On 19 February 2019, she replied and explained that she did not receive the hearing notice of the Board. The Board did not accept her explanation because the hearing notice was sent to the same address as the 7-day statutory notice without return from the Post Office. The fact that she replied to the 7-day statutory notice means she had received the hearing notice. Under the above circumstances, I am satisfied that the Board has good reason not to accept the applicant’s explanation for her absence at the hearing. The Board was therefore entitled to hear the appeal in the absence of the applicant under Section 15 of Schedule 1A of the Ordinance at the relevant time.

20.For the reasons given, the Board found that the applicant would not be subjected to the relevant risks if she returned Vietnam as claimed and dismissed her appeal.

21.The applicant’s grounds in paragraph 14, supra are not valid to challenge the Board’s Decision.

22.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.

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

CONCLUSION

24.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 18^th day of July 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