VU KIM HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1708/2019

[2024] HKCFI 2490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1708 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 27 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 52, is a Vietnamese. She surrendered to the Immigration Department on 7 December 2015 after entering Hong Kong illegally. The applicant made a non-refoulement claim on 20 February 2018 and 27 February 2018. 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 a loan owed to him.

5.  According to the applicant, she started operating a seafood business since 2005. In 2010, she borrowed money from the creditor to expand her business. The applicant was able to repay monthly instalments to the creditor initially. Yet, between 2013 and 2015, three of her customers persistently defaulted payment to her. The applicant’s business suffered a loss as a result and she could no longer afford paying monthly instalments.

6.  In February 2015, the creditor brought along 6-7 of his underlings to the applicant’s home demanding loan repayment. Upon knowing that the applicant was unable to repay, the creditor hit her face with fist while his underlings vandalised her home with wooden sticks. They then threatened the applicant to repay her loan by April 2015, failing which they would escalate their action.

7.  The applicant ceased her seafood business in March 2015. By April 2015, as she was still unable to repay, she relocated to her friend’s home and reported her new address to the police in accordance with the Vietnamese law. One day in May 2015, the creditor and ten of his underlings located the applicant at her friend’s home. They took the applicant to an abandoned house, where the creditor clamped and slashed her middle finger. The creditor then threatened to kill her if she still failed to repay her loan within the next six months, after which she was locked up until that evening.

8.  Thereafter and until October 2015, the applicant had been hiding at her friend’s home. By November 2015, she left Vietnam for China after raising sufficient funds and eventually sneaked into Hong Kong from Shenzhen.

9.  The applicant last contacted her daughters in August 2017, who told her that the creditor had been to her home looking for her and had threatened to kill her. The applicant was of the view that she could not seek protection from the police because they would not handle private debt dispute and she also believed that they colluded with the creditor. The applicant considered internal relocation not viable as well because she had no relative to rely on elsewhere and she believed that the creditor could utilise his network to find her.

10.  Details of the applicant’s story can be found in paragraphs 9-29 of the Director’s Decision dated 21 May 2018 (“the Director’s Decision”).

The Director’s Decisions

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) there was no evidence showing that the Vietnamese government was involved in the matter or that the creditor had means to locate the applicant anywhere within Vietnam [34]; (ii) 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 [35]; (iii) state protection would be available [36]-[40]; (iv) internal relocation would be viable [41]-[45] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [46]-[51], Persecution risk [52]-[57] or Torture risk [58]-[61].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. The Board considered the Court of Appeal decision[1] and decided that the appeal can be justly determined without a hearing and the case was therefore proceeded on such basis [3].

14.  The Board found the applicant’s claimed injury did not attain the minimum level of severity, while her claimed collusion between the police and the creditor was merely her speculation with no evidence in support. 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 [14]-[22], [49]-[67]. Furthermore, state protection and internal relocation would also be available according to the country of origin information [40]-[48], [68]-[76].

15.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

16.  The applicant has filed Form 86 dated 20 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In the affirmation in support of her application, the applicant says she will be harmed or even killed by her creditor if she returns to Vietnam. She has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

18.  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).

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

20.  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.”

21.  For the reasons given above, the Board found that the applicant’s story has not met the requirement of the any of the applicable risks. On this basis, it dismissed her appeal and confirmed the Director’s Decision.

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.