Dinh Hong Linh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1219/2019

[2023] HKCFI 2537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1219 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 28 March 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 entered Hong Kong illegally and was arrested by the police on 14 January 2016. On 13 June 2016, she lodged a non-refoulement claim on the basis of a risk of harm arising from an outstanding debt.

5.In brevity, the applicant borrowed a loan from a moneylender in February 2013 for her fishing business. Initially, she was able to repay the monthly interests from March to May 2013. However, a storm destroyed her business and, since January 2014, the applicant had been in default of loan payments.

6.After the applicant’s default, the moneylender started to chase for repayment. In the first five encounters, the applicant succeeded in persuading the moneylender to extend the payment deadlines. In the end of November 2015, the moneylender brought some followers to the applicant’s house, destroying the properties therein and threatening to kill the applicant and her family if she failed to settle the loan by 15 December 2015. The applicant escaped to her parents’ place with her kids. However, three or four days later, the moneylender found her and threatened to kill her. 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 20 January 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s 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 [12]-[14]; (ii) state protection would be available to her [15]-[19]; and (iii) internal relocation was a viable option for her [20]-[25].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 8 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) there was no severe pain or sufferings that attained a requisite level of severity [10]-[13]; (3) according to country of origin information, state protection and internal relocation were both viable alternatives [14]-[19]; [29]. In addition, the applicant was not a reliable witness and her evidence was not credible [31] – [34].

10.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

11.The applicant has filed Form 86 dated 7 May 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 is refouled to Vietnam, 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 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 Decision 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.The Board had, for the reasons given in paragraph 9 supra, dismissed her appeal.

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

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

Dated the 17^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