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

HCAL 1218/2019

[2023] HKCFI 2045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1218 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 30 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision 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 was arrested by police and referred to the Immigration Department. She admitted that on 7 July 2015 she entered Hong Kong illegally. A removal order was issued on 5 August 2015. On 6 August 2015, she lodged a non-refoulement claim in writing.

5.The applicant claimed that, if refouled, she will be harmed and even killed by her creditor called Tu because she was unable to repay her debt of 950 million Vietnamese currency. Briefly stated, she borrowed the money from Tu in July 2010 for her business of wood supplying. Her business went bad in 2013 and she was unable to pay the interest on the loan. Between 2014 and 2015, the creditor, together with his subordinates, had gone to her house twice to demand repayment of the loan. On one occasion, she was beaten and injured by a knife on her left wrist by one of the subordinates. She had to receive medical treatment from hospital. It took about a week for recovery. They also splashed feces onto the door of her house. She had reported the matter to police, which asked for 5 million Vietnamese currency for administrative fee or they would not follow up the matter. She had no money to pay for the administrative fee. She decided to more to live in other place with her family. She had gone to live in her friend’s place in Woo Chi Ming city. But she was followed. So she changed the living places elsewhere. This happened for 10 months. She then decided to come to Hong Kong to avoid the creditor. Details of her story are set out in paragraph 7 of the Director’s Notice of Decision dated 16 January 2017 (“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 for the reason that the risk of being harmed or killed by the creditor if she returned to Vietnam was assessed to be low due to the reasons: (1) her injury caused by her creditor was of minor level, which healed within one week and there were no other physical or mental torture of high level [13]; (2) state protection would be available to her [16] and [20]; and internal relocation would be a viable option for her [21] – [27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 February 2019, the Board conducted an oral hearing for her appeal, during which she testified. Having considered the applicant’s evidence, the Board concluded that (1) the state was not involved in the incidents [7] – [9]; (2) internal relocation should be possible, having considered the Director’s Decision [14] & [18]& [15]; (3) the Board did not accept that the creditor would be interested in locating the applicant all over Vietnam [18]; and (4) the applicant was not a reliable witness and her evidence was not credibile [31] – [34].

9.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

10.The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said her fear of risk is genuine and substantial as the creditor would torture or kill her because she is unable to repay the debt.

DISCUSSION

12.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).

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

14.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.”

15.The Board had taken into consideration of the Director’s Decision [15] and agreed with the Director that her injury as alleged was not serious enough to satisfy the criteria for BOR 3 risk and that internal relocation would be a viable option open to her. The Board further found that the applicant was dishonest and unreliable [34], which comment, in my view, would not be necessary, given the evidence that the Board did not dispute that she was injured by a subordinate of the creditor with a knife, and it would be sufficient to dispose of her appeal without this comment.

16.There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

18.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 17^th day of August 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