Nguyen Thi Be v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1405/2021 [2024] HKCFI 2887 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1405 of 2021
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is an application by Madam Nguyen Thi Be (“Applicant”) for leave to apply for judicial review of the decision of the Director of Immigration (“Director”) dated 29 September 2021 (“DOI Decision”) in refusing the Applicant’s application to make a subsequent non-refoulement protection claim (“Application”). 2.The DOI Decision was in Chinese while both the Applicant’s Form 86 (“Form 86”) and supporting affirmation (“Supporting Affirmation”) filed herein were in English. On 4 September 2024, the Applicant filed a further affirmation also in English applying to withdraw this intended judicial review application (“Withdrawal Application”). As such, I decide to issue this decision in English. Background of the Applicant 3.The Applicant is a Vietnamese. She was born on 8 March 1950 in Vietnam. 4.She had previously made a claim in 2015 for non-refoulement protection (“Claim”). By a decision dated 21 April 2017, the Director refused the Claim (“2017 Decision”). The Applicant appealed to the Torture Claims Appeal Board (“Board”) (“Appeal”). By a decision dated 25 July 2017, the Board dismissed the Appeal (“Board’s Decision”). The Applicant did not take the matter further. Thus, the Claim was concluded and the Applicant was repatriated to Vietnam on 9 November 2018. 5.The Applicant came to Hong Kong again in 2021 and made the Application by written representations dated 13 and 15 April 2021 and 13 May 2021. The Claim 6.The Applicant claimed that she owed her creditor (“Creditor”) VND 100 million (“Debt”) being unpaid balance purchase price for a coalmine in Vietnam which the Applicant purchased from the Creditor in early 2015. 7.The Creditor had triad society background. 8.The coalmine collapsed in March 2015 in heavy rain after being operated for a few months causing death to the Applicant’s 2 sons. As operation of the coalmine was illegal, it was confiscated by the government. The Applicant lost all her investment and was unable to repay the Debt. 9.Since April 2015, the Creditor came to her home many times with followers to coerce the Applicant for repayment of the Debt. When she was unable to pay, the Creditor would insult her with foul language. On one occasion, she was slapped hard by a follower of the Creditor on her left face causing tinnitus in her left ear. 10.The Applicant fled to Hong Kong in July 2015 for protection and lodged the Claim. She claimed that if she were returned to Vietnam, she would be harmed or killed by the Creditor for failing to repay the Debt. 11.The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:
12.By the 2017 Decision, the Director refused the Claim. By the Board’s Decision, the Board affirmed the 2017 Decision. The Board rejected and dismissed the Appeal. 13.The Applicant was repatriated to Vietnam on 9 November 2018. She came to Hong Kong again in 2021 and made the Application. By the DOI Decision, the Director refused the Application. 14.On 7 October 2021, the Applicant filed the Form 86 seeking leave for judicial review of the DOI Decision. The Applicant filed the Supporting Affirmation on the same day. In the Form 86, the Applicant named the Director as the purposed respondent for the intended judicial review. 15.On 4 September 2024, the Applicant filed the Withdrawal Application applying to withdraw her judicial review application. The 2017 Decision 16.After considering all the relevant circumstances, the Director was of the view that there was no reasonable likelihood that the risk of harm from the Creditor and his followers as the Applicant perceived was real and foreseeable. The low intensity and frequency of ill-treatment from the Creditor in the past was indicative of the unlikelihood of future risk of harm upon the Applicant’s return to Vietnam and the past ill-treatment inflicted on the Applicant had not attained a minimum level of severity. 17.On the issue of state protection, the Director after considering the relevant country of origin information (“COI”) found that the Vietnamese authorities had performed due diligence and were able and willing to offer sufficient protection to its citizens. 18.The Director further found that internal relocation would be viable. If the Applicant moved to Hanoi, Da Nang City or Ho Chi Minh City, the Creditor would have great difficulty in locating her. After considering her work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life. 19.For the reasons set out in the 2017 Decision, the Director rejected the Claim. The Board’s Decision 20.The Board found that the Creditor never meant to hurt or kill the Applicant but only pressurize her for repayment of the Debt. Evidence suggested that the Creditor and his followers had never inflicted any severe pain or suffering, whether physical or mental, on the Applicant and the ill-treatment suffered by the Applicant did not fall within the meaning of “torture” under section 37U(1) of the Ordinance. 21.On basis of the COI, the Board found that the Applicant would be able to access to state protection in respect of harm threatened by the Creditor or his followers, if there was any. 22.The Board did not consider that the Applicant faced risk of life danger contemplated under BOR 2 or there was a real or genuine risk of torture or ill-treatment contemplated under BOR 3. 23.The Applicant’s claim was not linked to race, religion, nationality, membership of a particular social group, or political opinion. 24.The Board was of the further view that internal relocation was viable to the Applicant. 25.The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the 2017 Decision and dismissed the Appeal. The Application 26.In the Application, the Applicant stated that she stayed with 2 different friends in 廣寧省after she was repatriated to Vietnam in 2018 but was still located by the Creditor. She then went to 大叻市 but was still found by the Creditor. 27.She moved further to 下龍市. Though she did not encounter the Creditor or his followers in 下龍市, she worried that the Creditor might find her eventually. She decided to come to Hong Kong to seek protection again. 28.The Applicant said she was found by the Creditor even when she had moved away from 廣寧省. She said that the Creditor had followers spreading all over Vietnam and would have no difficulties to find and kill her. Thus, she came to Hong Kong and made the Application. The DOI Decision 29.The Director took the view that the Application was still based on the same subject matter of the Claim which had been dealt with by the 2017 Decision and the Board’s Decision. Thus, the matters raised by the Applicant in the Application did not constitute a significant change of circumstances. The Director maintained the view that reasonable state protection was still available to the Applicant. By the DOI Decision, the Director refused the Application. Legal principles applicable to judicial review 30.In a judicial review, the court does not step into the shoes of the decision makers. 31.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
32.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion 33.In the Form 86, the Applicant did not put forward any grounds for her intended judicial review. 34.In the Supporting Affirmation, the Applicant raised the following complaints:
35.The Applicant had sent 3 written representations on the Application to the Director dated 13 and 15 April 2021 and 13 May 2021. On 17 May 2021, the Director required the Applicant to provide further supporting information and evidence for the Application. The Director further referred the Applicant to the Duty Lawyer Service (“DLS”) which had agreed to assist the Applicant in the Application. The DLS sent in further supporting information to the Director on 20 August 2021 on behalf of the Applicant before the Director made the DOI Decision. The Applicant had reasonable opportunities to clarify her case and the situation in Vietnam. It is not reasonably arguable to argue that the Applicant had not been allowed an opportunity to clarify her case and situation in Vietnam. 36.The fact that she was still pursued by the Creditor had been noted in the DOI Decision and considered by the Director. The Director was of the view that this was only updated information of the Claim and did not constitute a significant change of circumstances. This was a finding of fact within the province of the Director which the court will not interfere unless such finding involved errors of law, procedural unfairness or irrationality and I find none in this case. 37.No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Director had erred in law in the DOI Decision, or in what way was the DOI Decision unfair or unreasonable or that the Director had acted procedurally unfair or irrational, or how did the Director take into account irrelevant matters or fail to take into account relevant matters. 38.In this case, the court does not detect any error of law in the DOI Decision or procedural unfairness at any stage of the proceedings for the Application. The DOI Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The DOI Decision is without fault. The proposed judicial review is not reasonably arguable. The Withdrawal Application 39.The Applicant subsequently filed the Withdrawal Application on 4 September 2024 stating that she wanted to withdraw her application and return to Vietnam. 40.Apart from the Withdrawal Application, there is nothing outstanding in this action. 41.The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:
Conclusion 42.In the premise and having considered the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration the Application, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 18th day of October 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
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