Le Thi Huyen v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 994/2023

[2024] HKCFI 2785

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 994 OF 2023

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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 8 June 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. She appeared before the Court on 30 October 2023.

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 53, is a Vietnamese. She entered Hong Kong illegally on 11 June 2021 and was arrested by the Immigration Department on 7 October 2021. On 11 October 2021, she was sentenced to imprisonment of 15 months for using forged identity card and taking up employment while being a person that landed in Hong Kong unlawfully. The applicant made a non-refoulement claim on 3 November 2021. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”), who had triad background, because she failed to repay the loan owed to him.

5.According to the applicant, in early February 2021, she took out a loan from the creditor in order to pay the surgery fee for her mother. She only managed to pay her monthly instalment once in March 2021. In April 2021, the creditor brought along two of his underlings to the applicant’s home demanding loan repayment, during which they threatened her and hit the back of her neck with a brick. Thereafter, the applicant relocated to her friend’s home in Ho Chi Minh City. In May 2021, she was informed by her son that the creditor had been to her home looking for her and had threatened to kill her. The applicant believed that she was no longer safe in Vietnam. She therefore left for China on 24 May 2021 and eventually sneaked into Hong Kong from Shenzhen on 11 June 2021.

6.While in Hong Kong, the applicant was told by her son that the creditor was still after her. The applicant was of the view that she could not seek protection from the police because she had no money to bribe them and that she also feared retaliation from the creditor. The applicant also considered internal relocation not viable because the creditor could locate her through his triad network.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 January 2022 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.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 [11]-[14]; (ii) the background of the creditor was based merely on hearsay information and there was no evidence that he had means to locate the applicant anywhere within Vietnam [15]-[16]; (iii) state protection would be available [17]-[21]; (iv) internal relocation would be viable [22]-[23] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[35] or Torture risk [36]-[39].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 20 January 2023, the Board conducted a hearing.

11.The Board found the applicant not credible. Her evidence about the loan as well as the claimed threats and assault were vague, implausible and inconsistent. It was therefore not accepted that she left Vietnam because of her claimed fear of harm [44]-[52].

12.In any event, the claimed injury suffered by the applicant failed to reach the requisite level of severity and there was also no evidence of state involvement in the matter. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [22]-[34], [54]-[62]. Furthermore, internal relocation would also be available [63]-[64].

13.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

14.The applicant has filed Form 86 dated 21 June 2023 for leave to apply for judicial review of the Board’s Decision.

15.In the affirmation in support of her application, the applicant attached the Board’s Decision without stating any specific ground to challenge the Board’s Decision.

DISCUSSION

16.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).

17.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 that her brother who owed money to the creditor was killed.

18.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.”

19.That her brother was killed by his creditor is not supported by any evidence. Even if it is true, it is not a valid ground to challenge the Board’s Decision, in particular, the credibility of her evidence.

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

DISPOSITION

21.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 appeared in person.