Case Document

100%Judiciary

HCAL 1217/2019

[2023] HKCFI 2632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1217 of 2019

BETWEEN
	Nguyen Thi Lan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 3 May 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 on 7 August 2015. On 10 August 2015, she was arrested by the police. On 14 August 2015, she lodged a non-refoulement claim on the basis of a risk of harm from a moneylender called Bao Deu due to an outstanding debt.

5.In brevity, the applicant’s late husband borrowed a loan from Bao for his fishing business. Despite he was able to repay the monthly interests while the business was profitable, he defaulted the payment after the epidemics hit and the business collapsed. Shortly after her husband’s death, Bao started his illegal debt collecting activities. He came along with his subordinates to the applicant’s house, threatening her and her children and assaulting them. After experiencing three incidents of assaults, and the unavailability of assistance from the local authority, the applicant eventually fled to Hong Kong for protection. Details of her claims are set out at paragraphs 7 to 26 of the Notice of Decision dated 16 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 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 [31]; (ii) there was no evidence of state involvement [32]; (iii) state protection would be available to her [33]-[36]; and (iii) internal relocation was a viable option for her [37].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 22 February 2019, the Board conducted an oral hearing for her appeal, during which she testified.

9.The Board considered the applicant’s claim and her oral evidence [28]-[32]. It found that the applicant’s evidence on the details of the loan and the background of the moneylender was vague and inconsistent which undermined her credibility [33(i)]; that the injuries allegedly sustained by her and her children were not severe and she was able to stay with her sister for two years without encountering the moneylender [33(ii)]; that, in law, the moneylender could pursue payments against her husband’s estate and, if the loan was an illegal one, it was unlikely that the moneylender could recover the debt through police or the court [33(iii)]; and that the moneylender and his subordinates did not act in any official capacity [33(iv)]. In addition, the applicant could seek assistance from the police or the court if she were to be harassed by the moneylender and his followers and that this loan dispute did not warrant a non-refoulement protection [42]. In any event, state protection and internal relocation were both available to the applicant [44]-[49].

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 reiterated her story of why she came to Hong Kong without raising any specific ground.

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, rejected 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 31^st day of October 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 31/10/2023 Nguyen Thi Lan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31/10/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5940/17/1/224/V881 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3042/16 (Formerly RBCZ 12960/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)