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

HCAL 1208/2019

[2023] HKCFI 1987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1208 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 11 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 is a national of Vietnam. She surrendered to the Immigration Department and admitted that she came to Hong Kong illegally on 6 November 2015. She lodged her non-refoulement claim in writing on 10 November 2015. The applicant’s claim is based upon her allegation that, if refouled, she will be harmed or even killed by her creditor and her subordinates because she is unable to repay her debt.

5.  According to the applicant, between 2012 and 2013, she and her husband ran the business of scrap iron. She had borrowed loans from her creditor for her business. The total indebtedness was by then about 700 million Vietnam currency. There was no documentary evidence. She only paid the interest each month. After one year, she was unable to pay the interest as her customers had defaulted payments. In 2014, the creditor threatened her that if she was unable to repay the money, she would cut off her hands and feet. Her creditor had also sent her subordinates to trace and track her, threatening her that if she reported the matter to police, they would harm her sons. She tried to avoid her creditor and her subordinates by moving to live in her friend’s place in Ho Chi Ming city, where she had stayed for 2 months. She had also gone to live in Malaysia where she stayed for about one year. Meanwhile, she returned to Vietnam to see her children. She was told that the creditor and her subordinates were attempting to locate her. But they did not harm her family members. She was told that Hong Kong was a safe place. She therefore left Vietnam for Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 5 July 2021 by the Director (the “Director’s Decision”). The applicant also alleged that state protection would not be available because the police are corrupt and internal relocation would not be feasible because the creditor’s had many subordinates, who would be able to locate her.

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 for the reason that her alleged risks of being harmed or killed by the creditor and her subordinates were assessed to be low. In essence, the Director found that from her experience, the creditor and her subordinates did not do harm to her family members or herself. They did not attempt to locate her when she was in Ho Chi Ming city [11] – [14]. State protection would be available to her [15]-[17] and internal relocation would be an option open to her [18] – [26].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 7 March 2019, the Board conducted an oral hearing for her appeal, during which he testified [4]. Having considered the applicant’s evidence, the Board concluded that the applicant was a dishonest and unreliable witness and her claim was not genuine [38. (e)].

9.  The Board found that the applicant did not report the matter to police [38. (a)]; that her stay in Ho Chi Ming city for 2 months was uneventful [38. (c)]; that the threats and harassment from the creditor was far from severe pain and suffering, physical or mental, which triggered her escape from Vietnam [38. (d)].

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 6 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 set out the reasons below.

(1)  The Board had applied subjective views to her stated facts of the case and whereupon had made speculations, which is unfair to her.

(2)  The Board simply speculated that the creditor would not pursue the debt.

(3)  The Board had failed to cite the origins of the COI when it applied the information to her case. The Board had not pointed out the corruption of the police in Vietnam.

(4)  The adjudicator had not resided in Vietnam and he had no idea of corruption of the police in Vietnam. Police accepted advantage from the loan sharks and ignored the citizens’ complaints. The Vietnamese police are so corrupt that the citizens have lost confidence in them. This can be seen from the media of Vietnam.

(5)  If the applicant returns to Vietnam, she will not have a fair trial as well because the Judiciary in Vietnam are also corrupt. The applicant, being a resident in Vietnam, can testify that the Vietnamese government are corrupt. The Prime Minister had stepped down because of corruption of his government.

(6)  The Board had applied its subjective views to all risks and made its decisions against the applicant, which is an underestimate of her risks.

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 Decision 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, concluded that the applicant was a dishonest and unreliable witness. Judging from the reasons in paragraph 9, supra, I hold the view that her evidence may be regarded as exaggerations and unreliable rather than dishonesty. However, the Board was quite entitled to conclude that her evidence in support of her claim was unreliable.

17.  As to the grounds in paragraph 12 ground (1), (2) and (6), they are general or bare allegations without evidence in support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

18.  As to ground (3), the Board had considered the allegation of police corruption in Vietnam. It is not necessary for the adjudicator to reside in Vietnam to understand the situation there. The fact that the Prime Minister stepped down because of corruption of his government shows that the Vietnam government takes corruption as a serious matter. The Prime Minister took responsibility of his government and stepped down so that his replacement may address the issue effectively.

19.  There is no valid ground from the applicant to challenge the Board’s Decision.

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 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