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

HCAL 1982/2019

[2024] HKCFI 2524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1982 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 1 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 1 May 2019. Her application was filed on 15 July 2019, which is two and a half months’ late. This issue will be dealt with below.

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 11 September 2024. 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 51, is a Vietnamese. She entered Hong Kong illegally on 28 July 2013 and she surrendered to the Immigration Department on 10 February 2014. The applicant made a non-refoulement claim on 17 March 2014. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”), who was a triad member, because she failed to repay a loan owed to him. The applicant also claimed that her ex-husband’s wife became a person in vegetative state after being assaulted by her and she feared retaliation from her family. On 24 March 2014, the applicant was sentenced to imprisonment of 15 months for using a forged identity document and overstaying. On 23 February 2016, the applicant was also convicted of theft.

5.  According to the applicant, she took out a loan from the creditor and mortgaged her house for the loan. She spent the money on her farming and breeding business. Between January and March 2013, the applicant could not afford paying monthly instalments due to underperformance of her business. In April 2013, a plague broke out and killed all her produces. She was therefore forced to close down her business.

6.  On 10 May 2013, the creditor approached the applicant at her home. He threatened to forfeit her house and kill her if she failed to make repayment. Although the applicant reported the creditor’s threats to the police, they regarded this to be a matter of private dispute and did not take any action.

7.  On 12 June 2013, the creditor and five of his underlings came to vandalise and cordon off the applicant’s house. The creditor threatened to kill the applicant if she could not settle the debt within a month. The applicant made a report to the police, but was again futile. Thereafter, the applicant relocated to stay at her sister’s home.

8.  On 22 June 2013, the applicant divorced with her ex-husband and the custody of her son was granted to the latter. Shortly thereafter, her ex-husband married another woman. On 26 June 2013, the applicant confronted her ex-husband’s wife, during which she hit her head with a wooden stick. The applicant later heard from her sister that her ex-husband’s wife became a person in vegetative state because of the assault and the police was looking for her. She also heard that a warrant was issued against her for the loan default and the assault.

9.  On 19 July 2013, upon the advice from her sister, the applicant left Vietnam for China. Eventually, she sneaked into Hong Kong from Shenzhen on 28 July 2013. In June 2017, the applicant learnt from her sister that both the creditor and the police were still seeking her whereabouts. Her sister also told her that the family members of her ex-husband’s wife had threatened retaliation on her.

10.  The applicant was of the view that she could not seek protection from the police because they were corrupt and that there was also a warrant against her. The applicant also considered internal relocation not viable because the creditor could easily locate her with his triad network.

11.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 31 July 2017 (“the Director’s Decision”).

The Director’s Decision

12.  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”).

13.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the behaviour of the creditor indicated that he had no real intention to seriously harm or kill the applicant [11]; (ii) the claimed threat from the family members of her ex-husband’s wife was based on hearsay [12]; (iii) there was no evidence showing the involvement of the Vietnamese authorities in the matter or that the creditor had means to locate the applicant anywhere within Vietnam [13]-[14]; (iv) state protection would be available [15]-[17]; (v) internal relocation would be viable [18]-[26] and (vi) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[38] or Torture risk [39]-[41].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 11 January 2019, the Board conducted a hearing.

15.  The Board considered the applicant’s intention to seek non-refoulement protection in Hong Kong suspicious [50]-[52]. In any event, avoidance of loan repayment and punishment of an offence did not constitute grounds for a non-refoulement claim [72], [75].

16.  Given that the claimed ill-treatment against the applicant failed to attain the requisite level of severity and there was also no evidence of state involvement in the matter, the Board 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 [3]-[22], [73]-[74], [77]-[94]. Furthermore, state protection would also be available according to the country of origin information [56]-[72].

17.  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

18.  The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

19.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application. She has only iterated her reasons for coming to Hong Kong.

DISCUSSION

20.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

21.  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).

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

23.  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.”

24.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. The Court has no reason to interfere with it.

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

DISPOSITION

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