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

HCAL 2135/2019

[2024] HKCFI 3159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2135 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 22 July 2019 of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 30 September 2024. 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 35, is a Vietnamese. She entered Hong Kong illegally on 5 May 2018 and was arrested by the Immigration Department on 8 May 2018. The applicant made a non-refoulement claim on 24 June 2018. The claim was made on the basis that, if refouled, she would be harmed or even killed by her three creditors (“the creditors”) because she failed to repay the loan owed to them.

5.According to the applicant, in January 2015, she and her husband borrowed money from the creditors to startup a motor vehicle shop. In late 2016, the applicant discovered that her husband had misappropriated the money earned into gambling and hence did not make loan repayment. Meanwhile, due to underperformance of the business, the applicant could not afford repaying the loans and the motor vehicle shop was eventually closed down in March 2017.

6.Although one of the creditors, Ning, started chasing for loan repayment since the end of 2016, no violence was used and he always allowed the applicant more time to repay. In May 2017, the applicant relocated to her maiden home with her children because her husband continued indulging himself in gambling. In June 2017, Ning found out the applicant’s whereabouts from her husband and gave her a final warning to repay the loan within two months.

7.In August 2017, Ning and his underlings went to the applicant’s maiden home to look for her. Upon interference by the police, they left the scene. On the next day, Ning and his underlings returned and took away the applicant’s motor vehicle, during which they also kicked her several times.

8.Thereafter, the applicant went to stay with her uncle for two months to avoid Ning. Eventually, she left Vietnam for China in late October 2017 and then sneaked into Hong Kong from Shenzhen on 5 May 2018.

9.The applicant maintained contact with her family while in Hong Kong and was told that the creditors regularly went to her maiden home to enquire her whereabouts. The applicant was of the view that she could not seek protection from the police because they would not handle private dispute and that she had no money to bribe them. She also considered internal relocation not viable because she had no relative to rely on elsewhere and that Ning could also locate her through his network.

10.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 19 September 2018 (“the Director’s Decision”).

The Director’s Decision

11.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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment from the creditors indicated that they had no real intention to seriously harm or kill the applicant [11]-[12]; (ii) state protection would be available [14]-[17]; (iii) internal relocation would be viable [13], [18]-[23] and (iv) 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

13.The applicant appealed the Director’s Decision to the Board. On 26 April 2019, the Board conducted a hearing.

14.The Board found that the creditors had never threatened to harm or kill the applicant. The only occasion the applicant was attacked was when she tried to stop Ning’s underlings taking away her motor vehicle [56]-[57]. Meanwhile, the applicant’s own evidence suggested that the police did offer assistance when the matter was reported to them [59].

15.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 [7]-[16], [58], [60]-[67]. In any event, internal relocation would also be available [68]-[70].

16.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

17.The applicant has filed Form 86 dated 25 July 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

19.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).

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

21.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.”

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

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

DISPOSITION

24.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 and did not appear.