Manh Thi Mai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1296/2019

[2024] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1296 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 10 May 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”), 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, aged 58, is a Vietnamese.  She entered Hong Kong illegally on 13 December 2015 via a fishing boat in Shenzhen and was arrested by the police on 21 December 2015.  On 24 December 2015, the applicant made a non-refoulement claim by written representation to the Director of Immigration.

5.According to the applicant, at around August 2014, she and her husband borrowed money from Hiep to run an apparel business.  As the business did not go well, they were unable to repay the interest instalments since February 2015.  In an evening in March 2015, Hiep and his men came to her place demanding repayments and making troubles.  Hiep even threatened her that if she failed to settle the loan, they would kill her and her husband (“the debt collection incident”).  As the applicant did not have the means to pay, she kept relocating around Vietnam to avoid Hiep.  She finally left Vietnam in December 2015 and entered Hong Kong illegally on 16 December 2015.  The applicant maintained contact with her son since she arrived in Hong Kong.  She said Hiep harassed her son from time to time and even threatened to hurt him if she failed to repay the loan.

6.The applicant was unaware that she can seek state protection.  She also thought internal relocation not viable given the wide network of Hiep.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 15 June 2017 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the low intensity of past ill-treatment from Hiep is indicative of low future risk of harm upon her return to Vietnam [11]-[12]; (ii) state protection will be available to her upon her return [14]-[17]; (iii) internal relocation is viable [13], [18]-[26] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[38] and Torture risk [39]-[42].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 26 March 2019, the Board conducted an oral hearing.  

11.Having considered the applicant’s evidence, the Board did not accept her factual evidence, particularly in relation to (i) the existence of the loan, (ii) the existence of the debt collection incident and (iii) her relocation history within Vietnam [9]-[21].  In any event, the applicant’s case failed to meet any of the requirement under Torture risk [24]-[30], BOR 2 and BOR 3 risk [31]-[36] or Persecution risk [37]-[38].  Furthermore, state protection and internal relocation were also available to the applicant [22]-[23], [39]-[44].

12.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

13.The applicant has filed Form 86 dated 15 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant only said she will be killed by her creditor if she returns to Vietnam because she is insolvent.  She had not raised any specific ground.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

17.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.”

18.For the reasons given by the Board in the Board’s Decision, the Board rejected the applicant’s evidence and found that she is not eligible for non-refoulement claim.  Also, she will be protected by the state and internal relocation is reasonable for her.  The applicant has raised no valid reason to challenge the Board’s Decision.  From the evidence, the Board was entitled to come to its conclusion.  There is no reason for the Court to interfere with its decisions.

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 11^th day of April 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