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

HCAL 1641/2019

[2024] HKCFI 1381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1641 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 present 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 27 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 17 April 2024.

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 60, is a Vietnamese. She entered Hong Kong illegally on 27 August 2015 and was arrested on 20 September 2015. The applicant lodged a non-refoulement claim on 25 September 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”), who had triad background, because she failed to repay the loan to him.

5.According to the applicant, she operated a fish and poultry business in Vietnam from 1985 to 2013. In March 2013, she took out a loan from the creditor as she intended to expand her business. Unfortunately, her business did not go well and she was unable to make any repayment to the creditor since August 2013.

6.On 15 and 28 August 2013, the creditor sent 5-6 of his underlings to the applicant’s home. His underlings damaged her property and assaulted her with wooden sticks. They also threatened to kill her if she failed to repay the loan. The applicant reported the two assaults to the police. She first reported to the commune police, but they failed to resolve the problem. She then made a report to the district police, who merely told her to wait.

7.As a result of the two assaults, the applicant relocated to her brother’s home on 29 August 2013 and hid there for 15 days. However, one day when she was cooking, her brother informed her that the creditor had come and asked about her. Out of fear, she left her brother’s home and subsequently entered China illegally by boat in or about September 2013, where she worked as a rubbish collector. As she heard from people that she could earn enough money in Hong Kong to repay her debt, she left Shenzhen and entered Hong Kong illegally on 27 August 2015.

8.The applicant maintained contact with her family in Vietnam and was informed that the creditor continued his threats to kill her if she returned to the country without money to repay her loan.

9.Regarding state protection, the applicant was of the view that the corruption problem was still prevalent despite efforts by the Vietnamese government. She considered internal relocation not viable as well because she had never lived elsewhere in Vietnam and she knew nobody outside her hometown. The applicant also claimed that the creditor could still locate her within the country.

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 14 March 2018 (“the Director’s Decision”).

The Director’s Decision

11.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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment by the creditor indicated there was no real and foreseeable risk of harm upon her return [12]; (ii) state protection would be available to her upon her return [13]-[16]; (iii) internal relocation would be viable [17]-[19] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[30] or Torture risk [31]-[33].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 13 March 2019, the Board conducted a hearing.

14.Having considered the applicant’s evidence, the Board was of the view that the applicant did borrow money from the creditor and that she remained indebted to him. The Board also accepted that the applicant was assaulted twice due to her indebtedness [36]. However, the Board considered that the applicant’s claimed risk was localised and that she could simply relocate to avoid the creditor [37]-[39].

15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [7]-[9], [40]-[44], BOR 2 and BOR 3 risk [10]-[14], [45]-[50] or Torture risk [15]-[18], [51]-[54].

16.The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

17.The applicant has filed Form 86 dated 14 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.In the affirmation in support of the application, the applicant reiterated her reason for coming to Hong Kong, without raising any specific ground against the Board’s Decision.

DISCUSSION

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

20.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she cannot return to Vietnam as she is still indebted to the creditor. Her children are paying her debt. Once they have paid off the debt, she will return.

21.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.”

22.The Board found that the state was not involved in the monetary dispute between the applicant and her creditor [35]. The Board further found the internal relocation may alleviate her risk as in the Board’s Decision, the Board found:

“38. Even if it is assumed that the Claimant might face a real risk of harm at the hands of Chi [the creditor], such risk remains local to the Claimant’s home area. The Claimant could, without undue hardship, avoid any risk of contact with Chi if she were to relocate to any large city in Vietnam, for example to Hanoi, which has a population in excess of 7.5 million people, or Ho Chi Ming City, population in excess of 8.4 million.

39. While the Claimant is no longer a younger person, she has been able to maintain herself since 2013, both in Vietnam and in China. She does not have responsibility for any other persons and could, without undue hardship, relocate to Hanoi, or Ho Chi Ming City where she should be able to find employment, given the strong economy and thriving tourist industry of Vietnam.”

23.The applicant has raised no valid reason to challenge the Board’s Decision. The Court should not interfere with the Board’s finding of the facts.

24.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

25.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 4^th day of June 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