DAO THI NGOAN v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1163/2019

[2023] HKCFI 2961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1163 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.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 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”), the Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 30 March 2017. On 5 April 2017, she surrendered to the Immigration Department. On the date of the surrender, 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 CUC.

5.  In brevity, the applicant borrowed a loan from the creditor for her poultry business. However, in July 2016, her 77 pigs died from an epidemic. Since then, she had defaulted the loan. Afterwards, in two incidents, the creditor threatened and assaulted the applicant. Out of fear, she first escaped to her sister’s house before fleeing to Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 24 November 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) the past events indicated an unlikelihood of future risk of harm [13]-[15]; (ii) state protection would be available to her [16]-[21]; and (iii) internal relocation was a viable option [22]-[27].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 19 February 2019, the Board conducted an oral hearing for her appeal.

9.  The Board considered the country of origin information (“COI”) [7]-[29] and the applicant’s claim [30]-[37]. It found that the creditor had no intention to carry out the threats and cause serious harm or kill the applicant [39]-[48]; that the COI showed that state protection would be available [53]; that the violence inflicted by the creditor, if any, failed to attain a minimum level of severity [60]; that there was no state involvement [69]; and that state protection and internal relocation were both viable options for the applicant [89]-[95].

10.  For the aforesaid findings, 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 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant has raised the grounds below to say that the Board’s Decision is in error.

(1)  The adjudicator has not been to Vietnam, so he is not aware of the real situation there. The Creditors in Vietnam have been using horrendous violence for recovery of debts from the borrowers. The Board’s view is therefore the adjudicator’s subjective view, which is partial and unfair.

(2)  In paragraph 88 of the Board’s Decision, the Board said that state protection would be available. However, this view ignores the fact that the government departments and even the courts are corrupt. The Prime Minister Mr. Poon had resigned because he was unable to cope with the corruption problems within his government.

(3)  The Board found that he may relocate to other places in Vietnam. But the Board is unaware of the fact that he is unable to move to live in other places unless he has the approval of the commune registry. This is not possible without bribing the commune registry officials.

(4)  The adjudicator made a miscalculation of the loan, which should be more than $100,000 HK currency, not $1000 as he stated.

(5)  The Board had relied upon country of origin information (“COI”) to say that Vietnamese government is making reform and progress to deal with corruption within the government. However, the applicant also relies upon an article Vu Express dated 17 October 2016: “Vietnam leader slam corruption eroding morality in Communist Party; Party General Secretary Nguyen Phu Troup said, “falling morality and degrading life styles among Party members are evident in corruption, cronyism, bureaucracy …” This is contrary to paragraph 52 of the Board’s Decision.

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.  The Board, for the reasons given above, had accepted that she was indebted to the creditor. But the Board also found that the applicant was unable to establish, by evidence, that she will be subjected to the claimed risks.

17.  As to the reasons submitted in paragraph 12, supra, they do not assist the applicant’s application.

18.  Ground (1) is partly the applicant’s personal opinion without any evidence in support. The Board’s findings were based upon the COI. Ground (2) is the fact that the Board had acknowledged in the Board’s Decision. But the COI shows that the Vietnamese government has been taking reforms to rectify corruptions in the government, based upon which the Board found that state protection would be available to the applicant. Ground (3) does not sustain as the burden is on the applicant to prove, by evidence, that it is not possible for her to relocate. There was no evidence before the Board on the commune registry. Therefore, the Board did not make any finding on this issue. Ground (4) is only a mathematical error, which does not affect the Board’s findings on other issues of state protection or internal relocation. Ground (5) is the applicant’s opinions on the issue of corruption in Vietnam by reference to an article, which are the opinions of the author. The Board had to balance different views from different authors from the COI and finally come to its own conclusion, which it had done in the Board’s Decision. The Court should not interfere with the Board’s decision on this issue as guided by the Court of Appeal in Kartini.

19.  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.

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

CONCLUSION

21.  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