Nguyen Thi To Uyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1637/2019

[2024] HKCFI 1899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1637 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 oral submissions by the Applicant 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 31 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 41, is a Vietnamese.  She entered Hong Kong illegally from Mainland China on 26 October 2015. She surrendered to the Immigration Department on 24 November 2015 and made a non-refoulement claim on 16 February 2016.  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 a loan to him.

5.According to the applicant, she intended to start up a garment business in or about April 2013. She therefore borrowed money from the creditor to finance her business by using her father’s house as a collateral. Her garment business started operating in July 2013. In early May 2015, one lot of goods ordered from China was confiscated by the Vietnamese custom authority. As a result, the applicant suffered a financial loss and defaulted the loan repayment.

6.On or about 20 June 2015, the creditor together with three of his underlings came to the applicant’s shop demanding loan repayment. Upon learning the applicant’s inability to pay, they vandalised her shop and punched her on her head and abdomen. After around 10 minutes, they left after threatening her that she would be killed and her father’s house would be foreclosed if she failed to settle the loan within a month.  The applicant did not seek medical treatment, nor did she report the assault to the police.

7.Out of fear, the applicant relocated to her elder brother’s home about ten days later. Thereafter she moved to stay with a friend in Mong Cai, during which she worked part time in restaurants. Around two months later, the applicant decided to leave Vietnam for her safety.  Through the arrangement of an agent, she entered Mainland China illegally on 24 October 2015 and eventually sneaked into Hong Kong on 26 October 2015.    

8.The applicant maintained contact with her family since her arrival in Hong Kong. She was informed by her father that the creditor would come to her home seeking her whereabouts from time to time.  The creditor also threatened her father and damaged the furniture at her father’s home.

9.The applicant was of the view that she could not seek protection from the police because they were corrupt and would collude with the creditor. The applicant considered internal relocation not viable as well because the creditor could locate her anywhere within Vietnam given his triad connection. Furthermore, she also had no relatives elsewhere within the country and lacked the financial means for relocation.

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 28 June 2017 (“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 from the creditor indicated that her perceived risk of harm was not as real and imminent as claimed [12]-[14]; (ii) state protection would be available to her upon her return [16]-[19]; (iii) internal relocation would be viable [15], [20]-[24] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[36] or Torture risk [37]-[40].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 4 April 2019, the Board conducted a hearing.

14.The Board found the applicant’s delay in seeking non-refoulement protection unfavourable to her credibility [24]-[26]. Upon considering the applicant’s evidence, the Board did not accept that (i) the applicant was indebted to the creditor [29]-[36]; (ii) the startup and operation of the garment business [37]-[43]; (iii) applicant was assaulted due to her inability to repay the loan [44]-[47] and (iv) the creditor had extensive power and network in Vietnam or that he had the resources to locate the applicant anywhere within the country [48]-[50].

15.Based on such findings, the Board found the applicant not credible and rejected her account of events [54]-[58]. They concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [59]-[87], [115], Torture risk [88]-[97], [116] or BOR 2 and BOR 3 risk [98]-[106], [117]-[118]. In any event, state protection and internal relocation were also available to the applicant according to the country of origin information [52], [73]-[84], [107]-[114].

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 on 14 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.In her affirmation in support of her application, the applicant said she is insolvent and she will be tortured by her creditor if she returns to Vietnam.

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.

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.For the reasons the Board has given in the Board’s Decision as referred to above, the Board rejected the applicant’s evidence on the alleged facts in support of her claim. The applicant has raised no valid reason to challenge the Board’s finding of the facts.

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

CONCLUSION

24.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 19^th day of July 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