Duong Thi Thien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1879/2019

[2024] HKCFI 2355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1879 OF 2019

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BETWEEN

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J U D G M E N T

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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 interested party.

The applicant

4.The applicant, aged 55, is a national of Vietnam. She came to Hong Kong illegally in 2008. She was arrested by the Immigration Department on 9 January 2015. She lodged a non-refoulement claim by letter. She claimed that if refouled, she would be harmed or killed by her creditor because she was unable to repay her loan. Before the Board, she further said that she would be harmed by her husband.

5.According to the applicant, in 2007, she had borrowed 800 million Vietnamese currency from her creditor for farming business. The agreement was that they would share the profit. However, she did not make any profit. The creditor demanded return of the loan. She was unable to repay. The creditor instructed triad people to demand repayment. The triad people came to her house to make the demand. She was unable to repay and they assaulted her and her family members. They pushed her father on the ground. They also threatened to harm her children. She moved to live somewhere else in Vietnam to avoid her creditor. Finally, in 2008, she left Vietnam for China, from where she came to Hong Kong.

The Director’s Decision

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 13 December 2018 (“the Director’s Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 8 April 2019, the Board conducted an oral hearing.

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

“65. Considering the totality of the claims and evidence, given my concerns with the Applicant’s evidence and for the reasons given above, I do not accept that the Applicant had taken out the claimed loan, or has any outstanding debts. I do not accept that the Applicant or her family members have ever been threatened, approached, pushed, harassed, disturbed, forced to transfer land or otherwise harmed for reasons relating to the claimed loan. …

86. … I do not accept that the Applicant suffered violence, physical harm, mental harm or abuse from her husband. …”

10.The Board further found that state protection and internal relocation would be available to her [87]-[97].

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 has attached a copy of the Board’s Decision to her affirmation in support of her application, but without 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.From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions. In my view, the Board was entitled to come to its views above.

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

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

DISPOSITION

20.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.