Luong Thanh Diep and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1195/2019

[2023] HKCFI 2517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1195 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 applicants are husband and wife. They jointly apply for leave to apply for judicial review of the Decision dated 16 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicants’ claims are on the same basis that if they return to Vietnam, they will be harmed or killed by their creditor due to the outstanding debts.

2.The applicants did not request a hearing, their application is therefore 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, the Director of Immigration (the “Director”) is the interested party and the relief sought is the Board’s Decision.

The applicants

4.The applicants are nationals of Vietnam.  The 1^st applicant (husband) entered Hong Kong illegally on 20 April 2015.  He was arrested by the police on 22 April 2015.  On 13 May 2015, he lodged a non-refoulement claim.  The 2^nd applicant (wife) entered Hong Kong illegally on 22 December 2015 and surrendered to the Immigration Department on the same date. On the date of surrender, she also lodged a non-refoulement claim.  The couple’s claims were made on the same basis that, if refouled, they would be harmed or killed by their creditor due to the outstanding debts.

5.In short, the husband borrowed a loan from the creditor for the family’s fishing business in May 2008.  However, the business collapsed in 2012 due to the typhoon.  The applicants defaulted the loan payments.  In early 2013, they sold the fishing boat to repay the debts.  However, it was insufficient.  The creditor started to chase for repayments.  They threatened the applicants and assaulted them.  Before the husband fled, two gangsters visited their house in February or March 2015, threatening to kill them if they didn’t settle the debt.  The husband then fled to Hong Kong for protection.  In May 2015, the creditor visited their house again.  They assaulted the applicants’ son.  Since then, the creditor had been chasing the wife for repayments.  He even threatened to rape the wife.  Out of fear, the wife also fled to Hong Kong for protection.  Details of their claims are set out at paragraph 6 of the Notice of Decision dated 23 June 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicants’ claims 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 their claims. In elaboration, the Director found that (i) the future risk of harm, if refouled, was assessed to be low [12]; (ii) state protection would be available to them [13]-[17]; and (iii) internal relocation was a viable option [18]-[25].

The Board’s Decision

8.The applicants appealed the Director’s Decision to the Board.  On 8 January 2019, the Board conducted an oral hearing for their appeals, during which they testified [42].

9.Having considered the evidence, the Board found that the applicants provided inconsistent evidence on the material aspects [53].  For example, the Board noticed that the applicants’ oral evidence was changing, and contradicted with those provided in their written statements [55].  In particular, the applicants gave different accounts as to the terms of the loan [55].  They also contradicted themselves as to the details of the creditor’s chasing for repayments [56].  In these premises, as the applicants failed to provide credible and consistent evidence to the crux of their claims, the Board concluded that the applicants’ claims were not substantiated [56]-[59]. 

10.Even taking the applicants’ claims to the highest, their claims also failed [60].  The Board found that the creditor did not possess an intention to harm or kill them; that it was only a private loan dispute; that the creditor had not located them when the applicants escaped their home village; and that the injuries sustained failed to attain a minimum level of severity [61]-[68].  In any event, the country of origin information denoted that state protection and internal relocation were both viable alternatives for the applicants [69]-[93]. 

11.For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

12.The applicants filed Form 86 on 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In the applicants’ affirmation in support of their joint application, the applicants said that if they return to Vietnam they would be seriously harmed or even killed by the creditors and their subordinates.

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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.For the reasons given by the Board as set out in paragraphs 8 and 9, supra, the Board disbelieved their evidence and found that they failed to establish that they would be subjected to the applicable risks if they return to Vietnam.

17.The applicants have 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 applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

20.I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.

Dated the 12^th day of October 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