Dang Thi Thuy v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1794/2019

[2024] HKCFI 2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1794 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 dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 24 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 3 July 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 34, is a Vietnamese.  She last entered Hong Kong illegally in April 2018.  The applicant was subsequently charged for breach of condition of stay and was sentenced to imprisonment of 15 months on 13 April 2018.  The applicant made a non-refoulement claim on 4 October 2018 and 6 November 2018.  The claim was made on the basis that, if refouled, she would be harmed or even killed by a creditor (“the creditor”), who had triad background, because she failed to repay a loan owed to him.  

5.According to the applicant, she took out a loan from the creditor in early 2015 to startup her fashion business.  Due to poor economic condition, her business did not perform well and she was unable to repay the loan to the creditor.  In early 2016, the creditor brought along 4-5 underlings to the applicant’s home, with 1-2 of them carrying wooden sticks.  Upon learning that the applicant was unable to pay, the creditor instructed his underlings to vandalise the applicant’s house and threatened to kill her and her family.  The creditor then left after giving the applicant another three months to repay her loan, warning her that something bad would happen if she failed to meet the deadline.  

6.Subsequently, the creditor and his underlings went to the applicant’s home 2 - 3 times demanding loan repayment, during which they would also vandalise her house.  On one occasion, the creditor and his underlings even assaulted the applicant with bare hands and threatened to kill her if she still failed she repay the loan within the next few days.  The applicant suffered swellings on her face and had bruises on her limbs.  She self-treated her injuries and recovered around a month.  The applicant did not report the assault to the police, as she did not want to worsen the matter.

7.Out of fear, the applicant fled to Hong Kong to avoid the creditor.  After she was repatriated, she did not dare to return home and stayed at her friend’s home.  A few months later, the creditor found out her whereabouts and came to demand loan repayment.  As the applicant was unable to pay, the creditor forced her to sign a document agreeing to sell her kidney.  Upon the applicant’s refusal, the creditor and his underlings slapped her a number of times.  

8.Thereafter, the applicant left Vietnam for China.  She was subsequently arrested and was repatriated in January 2017.  Upon repatriation, the applicant lived at her friend’s home initially, but later moved back to her home.  In early 2018, the creditor discovered the applicant’s whereabouts and coerced her to agree selling her kidney on a number of occasions.  Although the applicant was assaulted by the creditor and his underlings, she refused to compromise on agreeing to sell her kidney. 

9.Due to the continuous threats from the creditor, the applicant made arrangement with an agent in order to leave Vietnam.  She left for China in April 2018 and eventually sneaked into Hong Kong from Shenzhen.  

10.The applicant maintained contact with her family while in Hong Kong.  They informed her that the creditor continued demanding loan repayment and looking for her.  The applicant considered internal relocation not viable because she believed that the creditor had wide connection within the country.  She was also of the view the police would not get involved in private matter like loan dispute.  

11.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 February 2019 (“the Director’s Decision”).

The Director’s Decision

12.The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

13.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the past behaviour of the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as she claimed [13] - [14]; (ii) there was no evidence showing that the creditor had any relationship with the Vietnamese government or that he had means to find the applicant anywhere within Vietnam [15]; (iii) state protection would be available to her [16] - [18]; (iv) internal relocation would be viable [19] - [21] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22] - [27], Persecution risk [28] - [33] or Torture risk [34] - [37].

The Board’s Decision

14.The applicant appealed the Director’s Decision to the Board.  On 6 May 2019, the Board conducted a hearing.  

15.The Board found the core assertions of the applicant’s claim unreliable [17] - [23].  In any event, the action of the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that her risk of harm upon return to Vietnam would be low [25] - [31].  Furthermore, state protection and internal relocation would be available to her according to the country of origin information [32] - [42].

16.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [43] - [58].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.  

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

17.The applicant has filed Form 86 dated 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.In the affirmation in support of her application, the applicant did not set out any ground.

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 understood the Board’s Decision and she wanted to withdraw her application because she wanted to return to her country as soon as she had served her sentence by 16 October 2024.

21.The applicant further submitted that she wanted to withdraw her application because she knew that her application would be rejected and she made her decision of her own accord and she knew the consequences.

CONCLUSION

22.In the circumstances, I dismiss her application.

Dated the 22^nd day of August 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