NGUYEN THI LY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1397/2019

[2023] HKCFI 3323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1397 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 17 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 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 is a national of Vietnam.  She entered Hong Kong illegally on 25 November 2013 and was arrested on 2 January 2014.  On 24 June 2014, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Dung. 

5.  In short, the applicant took out a loan from Dung in early 2012.  The sum originally was for the applicant’s clothing business.  However, the applicant was defrauded by her friend Thuy into investing the sum into a larger-scaled business.  Three days after the applicant gave Thuy the money, Thuy disappeared.  The applicant was unable to settle the loan.  In February 2013, Dung agreed to grant an extension for the applicant’s loan payment.  The applicant’s attempts to repay the loan failed.  On 13 July 2013, she was assaulted by Dung’s followers.  Meanwhile, from July 2013 to October 2013, Dung had been harassing her through telephones.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 30 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.  In elaboration, the Director found that (i) her claimed risk of harm was assessed to be low [13]; (ii) state protection would be available to her [14]-[21]; and (iii) internal relocation was a viable option [22]-[26].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 23 October 2018, the Board conducted an oral hearing for her appeal, during which she clarified certain aspects of her claim [18]-[20].

9.  The Board first considered the country of origin information [33]-[35]. It then proceeded to examine the applicant’s claim under the applicable grounds.  The Board noted that Dung was more concerned about getting the repayments, instead of possessing the intention to cause serious harm or even kill the applicant [37].  It also cast doubt to the applicant’s credibility due to her inconsistent evidence about the loan and the fraud [38];[41].  It found that Dung had never inflicted any sever pain or suffering on the applicant or her family [39].  Meanwhile, the dispute with Dung was a private monetary dispute without state involvement [40].  In addition, the Board found that the applicant’s alleged lack of state protection was a mere assertion [42].  As to the applicant’s claimed fear of harm from her husband, the Board found such claim to be lack of evidence [43].  In any event, internal relocation was a viable option [54]-[58].

10.  For the above reasons, the Board rejected the applicant’s claim 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 23 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the affirmation in support of her application, the applicant reiterated that she would be harmed by her creditor.  She has raised no specific ground in support of her application.

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, the Board rejected her evidence and found that the applicant had failed to established any real risk of harm if she returns to Vietnam.

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

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

CONCLUSION

19.  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