Nguyen Thi Ha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1190/2019

[2023] HKCFI 2227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1190 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 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 2 October 2015 and was arrested by the Hong Kong police on 5 October 2015. On 5 April 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor. 

5.In short, the applicant borrowed a loan from the creditor in January 2015 to operate a restaurant.  For every three months, the creditor would send his followers to her restaurant to collect the monthly interests.  After paying the monthly interest for the first quarter, the applicant started to default the payments.  Subsequently, there were four incidents, in which the creditor threatened, and assaulted the applicant and her husband.  Out of fear, the applicant fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 November 2017 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 her claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [10]-[13]; (ii) state protection would be available to her [14]-[17]; and (iii) internal relocation was a viable option [18]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 27 February 2019, the Board conducted an oral hearing for her appeal.

9.The Board considered the country of origin information (“COI”) [7]-[24] and found that the Vietnamese government was committed to dealing with loan sharks and illegal debt collection activities and thus state protection would be available to the applicant [25].  It then proceeded to consider the applicant’s claim [30]-[41].  It accepted that the applicant had experienced the threats and assaults from the creditor [42].  It also found that the applicant’s fear of harm was genuine and well-founded [43]-[45]. 

10.However, after considering the evidence, the Board found that the applicant’s creditor had no intention to materialize the threats to seriously harm or kill her [48]-[52].  Meanwhile, the Board noticed that, as at the date of the hearing, the socio-political atmosphere had changed in Vietnam and it was unlikely that the applicant would face any real or substantial risk of harm if refouled [53]-[54].

11.In assessing the individual grounds, the Board found that state protection would be available to the applicant [59]-[60]; that, given the circumstantial changes in the Vietnam, the applicant could receive state protection against the creditor’s illegal debt collecting activities [67]-[68]; that the ill-treatments, if any, were from a private individual without state involvement [76]; [89].  In any event, apart from the availability of state protection [96]-[98], internal relocation would be available to the applicant [99]-[102].

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

12.The applicant has filed Form 86 dated 3 May 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 she will be in danger if she returns to Vietnam because she is unable to repay her debt.

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 applicant has raised no valid ground 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 applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.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 September 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