BUI THI KIM CUC v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1622/2020

[2024] HKCFI 3326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1622 OF 2020

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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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 22 May 2020 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim.

2.  The applicant did not ask for a hearing. I shall deal with her claim 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 44, is a national of Vietnam. She was arrested by police in 2016. She was charged and convicted of the offences of illegal remaining in Hong Kong and using a forged identity card and was sentenced to 15 months’ imprisonment. She lodged her non-refoulement claim by written representations dated 10 and 11 May 2017 on the basis that, if refouled, she would be subjected to the risks below:

(1) She would be harmed or killed Ly, her creditor because of her default of payment of her indebtedness.

(2) The people from the People’s Committee for her protest and demonstration.

(3) She would be arrested and sent to prison as the government would consider her as a reactionary person.

5.  According to the applicant, she had borrowed a loan from Ly for her business of a pig farm, which failed because of bird’s flue. She was unable to pay the interest on the loan. Ly had given her time to repay. However, she was unable to make payment, Ly and his people assaulted her by slapping her face and threatened to kill her. She was expelled as a member of the People’s Committee at her locality. At the Committee’s meeting, she had made disruptions, protesting the Committee’s decision to expel her. She suspected that members of Committee had vandalized her shop in late 2017. She had attended several protests and demonstrations against the government, which would regard her as a reactionary person.

6.  Details of the applicant’s story can be found in paragraph 5 of the Director’s Decision dated 15 October 2019 (“the Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on all the applicable risks above for the reason that they were unsubstantiated. The Director found that, on the evidence, her claimed risk from Ly and his subordinates is small and it can be alleviated by internal relocation [14]; there was no evidence that the People’s Committee would target her and there was no evidence that the members had vandalized her shop; state protection will be available [19] and internal relocation will be viable upon her refoulement [33].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 20 January 2020, the Board conducted a hearing.

10.  The applicant had given oral evidence at the hearing with the assistance of an interpreter. Having considered the evidence, the Board had made the findings below:

“36. … the Appellant experienced from Ly and his fellows in the past, it is not accepted that the ill-treatment attained a minimum level of severity.

38. In any event, it is noted that the physical or psychological injuries, if any, on the Appellant in respect of the Incident, the Nuisance and the Detention are minimum only. …The perceived harm from Ly or people from the Committee is not as real as the Appellant has asserted.

55. There was no reliable evidence to show the existence of the Loan, the Incident, the Nuisance and the Detention. Even if there were disputes with Ly and his fellows and people from the Committee, those were private disputes at local level only. …

58. There was no, or no reliable evidence that the alleged ill-treatment of the Appellant, if any, had any relevance to the interest and/or benefit of the government of Vietnam.” [59-61] stated that there was no evidence to show persecution or that the Vietnam government was unwilling to provide protection to the applicant.

11.  For the reasons above, the Board confirmed the Director’s Decision and dismissed the appeal.

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

12.  The applicant has filed Form 86 on 7 August 2020 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, the applicant has not raised any specific reason to challenge the Board’s Decision.

DISCUSSION

14.  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).

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

16.  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.”

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

DISPOSITION

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