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

HCAL 1201/2019

[2023] HKCFI 2613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1201 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 25 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 (the “RHC”), 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 21 August 2015. On 24 August 2015, she surrendered to the Immigration Department and lodged her non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the creditor.

5.In short, the applicant took out a loan from her creditor on 2 August 2014 for her poultry business. As her business collapsed, she defaulted the loan payments. Since 1 April 2015, the creditor had been chasing for repayments. On 15 April 2015, she was assaulted by the creditor and four followers at home. Initially, she escaped to another city for around two months. In July 2015, she returned home. The creditor and six followers visited her house again. Not only did they assault her this time but they also raped her. Later, in mid-July 2015, the same assault and rape incident happened again. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 12 January 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) both the creditor and the applicant’s behaviors indicated that the creditor did not possess an intention to cause serious harm or even kill her for this private momentary dispute [15]-[17]; (ii) state protection would be available to her [18]-[20]; and (iii) internal relocation was a viable option [21]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 February 2019, the Board conducted an oral hearing for her appeal, during which the applicant answered questions from the Board [5].

9.Having considered the evidence, the Board made the following findings. First, the applicant failed to provide any documents for the loan [5.1]. Secondly, while she alleged that a plague or widespread epidemic destroyed her business, she did not produce any newspaper or any reports on this news [5.2]. Thirdly, she was vague about her complaints to the local authority and the police regarding the assaults [5.3]. Meanwhile, her evidence that the police was connected with the creditor was a bare assertion [5.4]. Fourthly, her claimed discard of the medical report further reinforeced that her claimed injuries lacked support and remained a bare assertion [5.5]. Fifthly, her immigration history denoted her dishonesty [5.6]-[5.9]. For these reasons, the Board rejected her claim and dismissed her appeal.

10.Even taking the applicant’s claim to the highest, the Board found that there was no state involvement [11]-[13]; that her claimed injuries failed to attain the minimum level of severity [14]-[17]; and that internal relocation was a viable option for her [18]-[22].

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

11.The applicant has filed Form 86 dated 6 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 she had borrowed money but is unable to pay back and if she returns to Vietnam, her life will be in danger.

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 Decisions 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.There is no valid ground to challenge the Board’s Decision.

17.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.

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

Dated the 19^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