Vu Thi Phuong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1134/2019

[2023] HKCFI 2740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1134 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 request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 27 November 2015. On 30 November 2015, she surrendered to the Immigration Department. On the date of surrender, she lodged a non-refoulement claim on the basis of a risk of harm from her creditor due to an outstanding debt.

5.In brevity, the applicant first borrowed a loan from Ah Lan in 2010 for her clothing business. Initially, she was able to repay the monthly interest. However, since January 2011, her clothing business had been deteriorating. To meet the monthly interest payment deadlines, the applicant took out another loan with Ah Yue. It turned out that she was unable to afford the interest payments of two loans. In June 2011, she defaulted the repayments. In July 2011, Ah Lan chased her for repayments. She extended the payment deadline to August 2011. Yet, in August 2011, the applicant was still unable to settle the loan. Ah Lan then took the applicant’s properties and threatened to kill her if she did not repay the loan in September 2011. In September 2011, the applicant was able to repay the monthly interests to Ah Lan. Yet, she defaulted the payments to Ah Yue. In October 2011, Ah Yue came and seized the applicant’s items too, threatening to attack her if she failed to repay within the next month. Shortly after, Ah Lan came with some unknown men and assaulted the applicant with bare hands and iron sticks. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 23 October 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 [14]-[16]; (ii) the loan disputes were private disputes without state involvement [17]; (iii) state protection would be available to her [18]-[24]; and (iv) internal relocation was a viable option [25]-[30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board conducted an oral hearing for her appeal.

9.The Board first considered the country of origin information (“COI”) [7]-[30]. It then recapped the applicant’s claim and personal background [31]-[45]. Having considered the applicant’s evidence, the Board made the following findings. At the outset, the Board found that, while there might be threats uttered against the applicant, the creditors had no real intention to execute the death threats [46]-[55]. Meanwhile, the Board noted that the COI indicated that the government implemented measures to combat the illegal debt-collecting activities and that the applicant was able to live trouble free in cities other than her home village [56]-[57]. Taking these circumstances into account, the Board found that, even if the creditors intended to inflict ill-treatments, their actions would be restrained and would not reach the minimum level of severity [58]-[59].

10.Further, the Board considered her claim under the individual grounds. It found that the applicant could receive sufficient state protection [64]; that the injuries sustained by the applicant or any future ill-treatments, if any, would not attain a minimum level of severity [69]-[73]; that Ah Lam and Ah Yue were not public officials or someone acting in official capacities [79]-[80]; that the applicant’s claimed fear was from her incapacity to repay the loan, which did not fall into the classes of protected people under the persecution ground [91]; and that, in any event, state protection and internal relocation were both available to the applicant [99]-[106].

11.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

12.The applicant has filed Form 86 dated 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant reiterated her reasons for coming to Hong Kong, but did not set out any specific ground.

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 Board accepted the applicant’s evidence. It had, nevertheless, came to a conclusion that state protection and internal relocation were available to the applicant. The Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012 held:

“31. … … This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT. …”

18.The applicant has raised no valid ground to challenge the Board’s Decision. 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 9^th day of November 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