Dinh Thi Ly v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1878/2019

[2024] HKCFI 2359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1878 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 17 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. 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 interestedparty.

The applicant

4.The applicant, aged 67, is a national of Vietnam. She came to Hong Kong illegally and was arrested by police on 1 February 2010. She was imprisoned for commission of several offences. Then she was deported to Vietnam on 14 May 2011. On 6 November 2011, she was arrested again by police. She was charged with the offence of illegally remaining in Hong Kong. She was sentenced to 20 months’ imprisonment. On 4 June 2014, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditors because she was unable to repay her loans.

5.According to the applicant, she borrowed a loan in 1999 and another loan in 2003. She was unable to repay. In 2003, a creditor together with his bodyguards came to her house to demand repayment of the loan. She was unable to pay, thereupon they beat up her son, causing a cut in his face. She was afraid her creditors might harmed or killed her, therefore she came to Hong Kong. She is afraid that if she returns to Vietnam, she will be caught by the creditors and they will subject her to life-endangered treatments.

The Director’s Decisions

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 Notice of Decision dated 17 July 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) there are no substantial grounds to believe that the claimed future risk of harm by her creditors upon her return is real and foreseeable [13]; (ii) there is no objective evidence to suggest that her creditors and their men have a real intention to inflict serious harm on her or to kill her [15]; (iii) her behaviour was inconsistent with a person who were in genuine fear of being harmed [16]; (iv) state protection will be available to her upon her return [18]-[24]; and (v) internal relocation is viable [25]-[29].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 5 March 2019, the Board conducted an oral hearing for her.

9.Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion below.

“74. … Having regard to all these matters, I am not satisfied that the Appellant’s claims are truthful. I find that the Appellant has fabricated her claims in an attempt to extend her stay in Hong Kong …I have significant concerns about the credibility of the Appellant’s evidence and the number of inconsistencies in her evidence.”

10.The Board then set out the reasons in support of its conclusion in paragraphs 75 to 95 of the Board’s Decision.

11.For the above reasons, the Board dismissed her appeal.

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

12.The applicant has filed Form 86 dated 5 July 2019 for leave to apply for judicial review of the Board’s Decision.

13.The applicant says she disagrees with the Board’s Decision. She has attached a copy of the Board’s Decision with her affirmation in support of her application, without raising any specific ground to challenge the Board’s Decision.

DISCUSSION

14.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).

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

16.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.”

17.The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

19.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant was not represented.