VU THI LANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1748/2019

[2024] HKCFI 1906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1748 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 24 May 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 22 May 2024 without prior notice to the Court.  I shall deal with her application on paper.

The applicant

3.  The applicant, aged 57, is a Vietnamese.  She last entered Hong Kong illegally from Mainland China in November 2013 and was arrested by the police on 16 April 2014.  She was sentenced to imprisonment of 15 months due to possession of forged identity card and illegally entering and staying in Hong Kong.  The applicant made a non-refoulement claim on 28 April 2014.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband.

4.  According to the applicant, in 2001, she and her husband borrowed money from various sources to startup a fish, poultry and livestock farming business. In January 2004, the business failed due to H5N1 and they were in financial difficulty.  The applicant’s husband blamed her for the loss and started assaulting her frequently.  On one of those occasions, the applicant’s husband hit her with a wooden pole, causing her to sustain bruises in her body.  In June 2004, the applicant could no longer tolerate the domestic violence from her husband and moved to live with her elder sister.  About two weeks later, the applicant was forced by her husband to return home, after which he continued assaulting her and blaming her about the financial difficulty.  In order to avoid further harm from her husband, the applicant left Vietnam for Hong Kong in July 2004 for the first time.  She stayed in Hong Kong until she was repatriated back to Vietnam in March 2011.

5.  Upon repatriation, the applicant did not go back to live with her husband, but stayed with her uncle.  In about October 2011, the applicant’s husband located her at her uncle’s house and forced her to go back to live with him.  As the applicant’s husband continued assaulting her from time to time, the applicant left Vietnam and sneaked into Hong Kong again in June 2012. She was repatriated back to Vietnam in April 2013, after which she went to live with her elder sister again.  The applicant later learnt from her son that her husband threatened to kill her upon knowing that she had returned to Vietnam.  Out of fear, the applicant left Vietnam and sneaked into Hong Kong for the third time in November 2013.

6.  While in Hong Kong, the applicant maintained contact with her children, who told her that her husband was still threatening to kill her.  The applicant considered internal relocation not viable because her husband managed to find her when she moved to the house of her elder sister and uncle.  Furthermore, she also lacked the financial resources for relocation.  Meanwhile, the applicant had never sought assistance from the police because they were corrupted and she had no money to bride them.  She also believed that the police would not assist on private family dispute.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 23 May 2017 (“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 action of her husband indicated that he had no real intention to seriously harm or kill her [13]-[14]; (ii) state protection would be available to her upon return [16]-[21]; (iii) internal relocation would be viable [15], [22]-[27] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28]-[33], Persecution risk [34]-[39] or Torture risk [40]-[43].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  The hearing was scheduled on 28 February 2019, for which the applicant failed to attend.  Notice of the Board’s intention to determine the applicant’s appeal in her absence was then sent to her reported address.  As the applicant failed to give any written explanation for her failure to attend the hearing within 7 days, the appeal was determined in her absence [65]-[68].

11.  The Board noted significant inconsistencies in the applicant’s claims regarding (i) the harm she feared [79]-[87]; (ii) the nature of her business and whether it was solely owned by her or jointly owned with her husband [100]-[101] and (iii) the place she stayed after she was repatriated back to Vietnam the first time [104]-[106].  The Board also considered the applicant’s claim about her business being in financial difficulty in 2004 due to H5N1 implausible because the business was still in operation in 2017 [98]-[99] and that H5N1 should only affect poultry, but not pigs and fish [102].

12.  The Board had doubts towards the applicant’s claim that she came to Hong Kong to avoid harm from her husband in light of the fact that she used a forged identity card and that she did not seek protection in Mainland China but only sought protection when she came to Hong Kong the third time [88]-[97].  The Board did not accept the applicant to be a credible witness and rejected her account of events to be true in general.  They were of the view that her claims were fabricated and were not satisfied that the applicant had a genuine fear of harm or ill-treatment from her husband [112]-[116], [176].

13.  Given that the applicant did not attend the hearing, she was unable to explain the implausibility and inconsistencies to the Board, so that she failed to discharge her burden of proof [69]-[72], [174]-[175].  In any event, there was no involvement from state authorities [107]-[109] and that the claimed ill-treatment did not attain a minimum level of severity [110]-[111], [177].

14.  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 [44]-[52], [133]-[153], [161]-[162], [181]-[184].  Furthermore, state protection and internal relocation were also available to the applicant according to the country of origin information [117]-[131], [154]-[160], [163]-[173], [178]-[180].

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 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In her affirmation in support of her application, the applicant enclosed a copy of the Board’s Decision without raising any specific ground.

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.  Section 15 of Schedule 1A of the Ordinance provides:

“If a claimant does not attend a hearing in person, irrespective of whether the claimant is represented at the hearing by a legal representative, the Appeal Board may hear the appeal in the absence of the claimant.”

22.  Section 18 of Schedule 1A of the Ordinance provides that the Board has the power to review the merits of the case and may consider the same evidence that was before an immigration officer.

23.  Section 37D of the Ordinance provides that the Board may, for the purpose of assessing the credibility of the applicant’s evidence, take into account the absence of the applicant at the hearing despite due notice had been given to her.

24.  The Board had assessed the applicant’s evidence and found that she had fabricated her claim.

25.  The applicant has raised no valid ground to challenge the Board’s finding of the facts.

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

CONCLUSION

27.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

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

Form CALL-1