DINH THI HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1694/2019

[2024] HKCFI 1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1694 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 9 April 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”), 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 42, is a Vietnamese. She entered Hong Kong illegally on 16 May 2016. She surrendered to the Immigration Department on 17 May 2016 and made a non-refoulement claim on the same day. 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 intended to start up a garment business by the end of 2012. She therefore borrowed money from the creditor to finance her business. Her garment business however was not doing well and she only managed to pay the monthly installment for the first five months.

6.  In about mid-August 2013, 3-4 of the creditor’s underlings came to the applicant’s home with knives. They demanded immediate repayment of the loan, failing which she would suffer from dire consequences or even death. The creditor’s underlings left after the applicant explained her predicament and promised to make repayment as soon as she could manage to.

7.  In February 2014, the applicant changed to run the business of marine farming with a view to repaying the loan. However, the business of her marine farm did not go well either due to poor harvests. The applicant was therefore unable to pay the monthly installment of her loan. Thereafter, the creditor’s underlings came to her home to chase for repayment every 2-3 months between May 2014 and early 2015. Every time, they threatened to kill the applicant if she failed to repay her loan, but they left after she promised to make repayment as soon as she could manage to.

8.  In early 2015, the applicant’s husband was at home when the creditor’s underlings came. After the applicant told them she was unable to pay, one of them used a wooden club to hit her husband’s head, shoulders and body. The applicant’s husband sustained injuries as a result. He self-treated his wounds, but did not attend hospital to seek medical treatment. Two months later, the applicant’s husband fled to Hong Kong because he was afraid of further violence from the creditor.

9.  Meanwhile, the applicant moved to stay with her friend for over a month. Thereafter, as she did not want to bring trouble to her friend, she decided to leave Vietnam. She entered China illegally on 15 May 2016. Eventually she sneaked into Hong Kong from Shenzhen on 16 May 2016.

10.  The applicant maintained contact with her mother and her two sons while in Hong Kong. She was informed that the creditor had already locked up her house in Vietnam. The creditor also occasionally visited the applicant’s home and left upon learning that she was not there.

11.  The applicant considered internal relocation not viable due to the registration requirement, as the creditor could make use of his connections with the Public Security Bureau to track her down. The applicant was also of the view that she could not seek protection from the police because it was her fault for failing to make loan repayment and that the police would only provide help to those who were wealthy.

12.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 8 August 2017 (“the Director’s Decision”).

The Director’s Decision

13.  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”).

14.  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 creditor and his underlings indicated that they had no real intention to seriously harm or kill her [12]-[14]; (ii) there was no evidence of any state involvement and in fact state protection would be available to her [15], [17]-[24]; (iii) internal relocation would be viable [16], [25]-[30] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [31]-[36], Persecution risk [37]-[42] or Torture risk [43]-[46].

The Board’s Decision

15.  The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 27 February 2019, for which the applicant failed to attend. The Board noted that Notice of Hearing sent by post to the applicant on 26 November 2018 was returned undelivered [22]. Upon enquiry with the Immigration Department, the Notice of Hearing was resent to the updated last known address of the applicant by post on 13 December 2018. This time the Notice of Hearing had not been returned undelivered [23]-[24]. The secretariat of the Board also attempted to reach the applicant by phone, but found that the telephone numbers were not in service [25].

16.  On 28 February 2019, Notice of the Board’s intention to determine the applicant’s appeal in her absence was sent to both the applicant’s previous address and her updated address. They were never returned undelivered [28].

17.  In light of the above, the Board was satisfied that the Notice of Hearing had been duly served on the applicant [39]. 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 [43]-[45].

18.  The Board noted from the country of origin information (“COI”) that the loan was more than 8 times the annual income of an average Vietnamese in 2012 and more than 6.4 times the average annual income in Vietnam in 2011 [98]-[99]. It considered that it was implausible that the creditor would have advanced such a huge sum of money to the applicant with no enquiries made [123]. In any event, COI also showed loan sharks charged high interest ranged from about 109%-182% per annum [104], so that it was implausible that the applicant would be able to obtain a loan with an interest rate at only 60% per annum [124]-[125].

19.  The Board found that the core of the applicant’s evidence was not worthy of belief. It did not accept that she had borrowed any loan and the existence of the creditor. It also did not accept the claimed debt collection incidents as well as the ill-treatments [158]. It concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [50]-[68], [159]-[169]. In any event, state protection and internal relocation were also available to the applicant according to the COI [69]-[71], [74], [152]-[154], [157], [170]-[172].

20.  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

21.  The applicant has filed Form 86 on 19 June 2019 to apply for leave to judicial review the Board’s Decision.

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

DISCUSSION

23.  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).

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

25.  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.”

26.  The applicant was absent at the Board’s hearing without any explanation. The Board had considered the merits of her case and, for the reasons given, rejected her claim.

27.  The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

28.  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

29.  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