Bui Thi Dung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2113/2019

[2024] HKCFI 2762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2113 OF 2019

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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 14 June 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 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 65, is a national of Vietnam. On 24 August 2015, the applicant surrendered to police and admitted that she came to Hong Kong illegally in 2005. By written signification dated 22 October 2022, she lodged her non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor because she was unable to repay her debt.

5.According to the applicant, she borrowed money from the money-lender for her gambling in 2005. She was unable to repay. The creditor had on 2 occasions brought some people to her home and threatened to kill her if she could not repay. She had to move to live with her friends in order to avoid the creditor. In February 2005, she came to Hong Kong as a visitor.

The Director’s Decision

6.The Director had rejected her torture claim. Therefore, 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 Director’s Decision, the Director dismissed the applicant’s claim. The Director finds that: (i) the low intensity and frequency of past ill-treatment on her is indicative of small future risk of harm upon her return to Vietnam; (ii) state protection will be available to her; and (iii) internal relocation is viable.

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 11 March 2019, the Board conducted an oral hearing for her.

9.Having considered the applicant’s evidence [9]-[23], the Board came to the conclusion that it agreed to the findings of the Director and dismissed her appeal.

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

10.The applicant has filed Form 86 dated 24 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.In the affirmation in support of her application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

12.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).

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

14.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.”

15.In my view, the Board was entitled to come to its views above.

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

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

DISPOSITION

18.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 unrepresented.