LE THI ANH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2708/2018

[2022] HKCFI 660

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2708 of 2018

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 22 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  As 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 4 March 2014 and surrendered to the Immigration Department on 26 May 2014. On the date of 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 Nam for her default in repaying the loans. 

5.  According to the applicant, in 2013, she partnered with her friend Manh in establishing a business in electronic appliances and thus borrowed loans from Nam to invest in the business.  However, in September 2013, a fire destroyed their business, resulting in their incapacity to repay the loans. Manh fled to other areas and she lost contact with him.  To demand the repayments, Nam constantly visited the applicant’s house with his followers. From 2013 to 2014, she was threatened by the gangsters and, on one occasion, they threw a vase at her which caused a cut in her knee.  The gangsters even chased her to her parents’ house and damaged their properties.  Out of fear, she eventually fled to Hong Kong for protection.  Details of her claim are set out in paragraph 6 of the Notice of Decision dated 29 July 2016 by the Director (“the Director’s First Decision”) and paragraphs 6 to 14 of the Board’s Decision described below. 

The Director’s Decisions

6.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 the Director’s First Decision, the Director found that the level of risk of the applicant being harmed or killed upon refoulement by the creditor was assessed to be low because (i) it was only a private and localized monetary dispute and there was no serious injuries (either mentally or physically) caused by the creditor and the gangsters [11]; (ii) state protection was available to the applicant [12]-[16]; and (iii) internal relocation was an option open to the applicant [17]-[22].  Thus, the Director rejected her claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  In a Notice of Further Decision dated 12 September 2017, the Director also rejected the applicant’s claim on the ground of BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to support her claim that her right to life would be violated upon her return. 

8.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

9.  The applicant appealed the Director’s Decisions to the Board.  On 5 July 2018, the Board conducted an oral hearing for her appeal and the applicant was given the opportunity to clarify and supplement her case.

10.  The Board considered the applicant’s claim in details.  It observed that the applicant had no prior commercial experience before establishing her business.  It cast doubt on the fact that she would invest a majority sum of her allowance in something that she barely knew [42].  The Board also reviewed the costs and profits of her business and pointed to her that the profit of her business was grossly inadequate for repaying the loans.  Upon the Board’s inquiry, the applicant provided inconsistent account [43]-[47].  Given the unsatisfactory explanations, the Board found her not a credible witness [47]. In assessing the individual grounds, the Board found that it was only a private dispute with no state involvement [49]-[56].  In any event, internal relocation to Ho Chi Ming city was an option open to the applicant [57]-[60].  For these reasons, the Board dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 29 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant said “…I fear that the money lender and his subordinates will inflict threat and physical harm on me, or even I will be killed by them since I don’t’ have money to repay the debt….”

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 CA, §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. Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.

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 did not accept the applicant’s evidence on the facts of her case. In other words, she does not have any factual basis in support of her claim. There is no valid reason from the applicant to challenge the Board’s Decision.

17.  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 for 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