Trinh Thi Hien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1183/2019

[2024] HKCFI 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1183 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 11 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 on 12 January 2015 as a visitor and was permitted to stay until 19 January 2015. She did not depart and had overstayed since 20 January 2015. On 26 September 2015, she was arrested by the police. On 5 October 2015, she lodged a non-refoulement claim. Her claimed fear of harm was from a loan shark due to an outstanding debt.

5.In short, the applicant borrowed the loan in May 2012 for her business. After the business failed, she defaulted the loan. In around November 2014, the loan shark started chasing for repayment. He only verbally threatened the applicant and vandalized her properties but did not harm her or her family members. The applicant first departed Vietnam during the negotiation of a settlement between her family and the loan shark. Yet, the negotiation failed. As she heard that the loan shark had been looking for her, she decided to flee to Hong Kong again for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 25 June 2018 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 absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]; and (iii) internal relocation was a viable option [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 December 2018, the Board conducted an oral hearing for her appeal, during which she also testified.

9.Having considered the applicant’s claim [8]-[20], her oral evidence [21]-[27], and the country of origin information (“COI”) [51]-[67], the Board found that the applicant’s account of the core issues was inconsistent and lacked credibility [70]. In particular, the Board noted that the applicant’s evidence was changing as to when her loan occurred [71]; that she was contradictory as to the debt collection process [72]-[74]; that she was inconsistent as to whether the loan shark allowed her to pay gradually [75]-[76]; that the Board refused to accept her attribution of these inconsistencies to the interpreter [77]; that her conducts were inconsistent with someone who genuinely feared an immediate risk of harm [78]-[79]; that, on her own evidence, she was never assaulted nor was there evidence of psychological or psychiatric injury [87]; and that internal relocation was a viable option [92]-[93].

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 3 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 only said she faced a genuine and substantial risk of being subject to torture or even killed by her creditor, but she did not raise 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 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.The Board, for the reasons given above, had rejected the applicant’s evidence on the facts of her case and also, internal relocation was a viable option to her. She does not have any valid reason 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 3^rd day of January 2024

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