PHAMTHI NHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1431/2019

[2024] HKCFI 461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1431 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 Decisiondated 15 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.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC 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 is a national of Vietnam.  She was arrested by the police on 26 October 2015 and referred to the Immigration Department.  She admitted she had illegally entered Hong Kong via the Mainland on 24 October 2015.  The applicant subsequently lodged a non-refoulement on 2 November 2015.

5.  The applicant’s claim is on the basis that, if refouled, she will be harmed or killed by her creditor (Le Van Hoat) due to an outstanding debt. Briefly stated, she took out a loan in the sum of 700 million Vietnamese Dong from Hoat in or around 2005 in order to set up a fishery business with her husband. However, the business failed due to poor weathering conditions in 2009 and she was unable to repay the loan to Hoat.  On one afternoon in the same year, Hoat and his henchmen came to the applicant’s home and demanded payment.  When she indicated she was unable to do so, the assailants beat her and threatened to kill her if the loan remained unpaid.  She sought help from the local police but was turned away as they informed her this was a private dispute.  After several months later, Hoat and his henchmen came to the applicant’s home again to demand payment.  She was again beaten as she was unable to repay the loan and the assailants made death threats similar to the previous incident.  Since the police did not intervene in the past, the applicant did not report this second incident to the police.  To avoid further harm from Hoat, she relocated to Hanoi until 2015.  There was no further confrontation with Hoat and/or his henchmen while she was in Hanoi.  The applicant then made plans to escape harm from Hoat by leaving Vietnam upon hearing there was human rights protection in Hong Kong.  Details of her claim are set out at [6] of the Notice of Decision dated 6 June 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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 for the reason that the risk of being harmed or killed by Hoat if she returned to Vietnam was assessed to be low due to the following reasons: (i) her injuries caused by her creditor during the two incidents were of minor level, which did not require hospitalization and there was no mental torture inflicted [12]; (ii) she was able to reside in Hanoi for nearly six years without any problems, which indicated she could relocate to other parts in Vietnam [13]; (iii) the loan dispute between her and Hoat was private in nature and did not involve the state [15]; (iv) state protection would be available to her [14] and [16]; and (v) in any event, internal relocation would still be a viable option for her [18] – [24].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 7 January 2019, the Board conducted an oral hearing for her appeal, during which she provided clarifications to the Board [40].  

9.  The Board recapped the applicant’s claim [16] – [38].  In essence, the Board appears to have accepted the factual matrices of the applicant’s claim, however, it held that: (i) the incidents instigated by Hoat were merely to pressure the applicant to repay the loan as there was no evidence to suggest that Hoat had any intention to carry out his threats [42] – [46]; (ii) she could have got assistance from higher government authority in Vietnam, but chose not to do so [47] and [48]; (iii) the loan dispute was private in nature [54]; and (iv) internal relocation was a viable option given the fact she had safely lived in Hanoi for nearly 6 years without incident, and as she was a healthy mature adult, there should be no difficulty for her to live a normal life in other cities in Vietnam to avoid Hoat [56] – [58].

10.  For the above reasons, the Board found the applicant’s claim failed on all applicable grounds and dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has, in her affirmation, said the if she returns to her country, she will be killed by her creditor and his men.  Also, she is insolvent.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

15.  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.”

16.  For the reasons given in paragraph 9 above, the Board found that the applicant failed to establish that she has any real risk of harm by the creditor if she returns to Vietnam.

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

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.  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