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

HCAL 2142/2023

[2024] HKCFI 651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2142 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	onsideration of documents and oral submissions by the Applicant 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 5 September 2023 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”), I shall deal with her application on paper.

The applicant

3.  The applicant, aged 28, is a Vietnamese. She entered Hong Kong illegally for the first time on 26 April 2019 and was repatriated on 16 May 2019.  On 30 June 2021, she entered Hong Kong illegally for the second time and was arrested on the following day. The applicant lodged a non-refoulement claim on 22 July 2021. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor, Doan, because she failed to repay the loan.

4.  According to the applicant, in June 2019, she borrowed money from Doan, who had triad background, in order to set up her oyster farm.  By July 2020, her oysters were wiped out due to water contamination.  Coupled with the negative impact on the economy caused by COVID-19, the applicant had to cease business and hence was no longer able to repay the loan.

5.  Soon after that, Doan and four of his underlings attended her oyster farm and threatened to kill her if she failed to repay the loan within a month. In late August 2020, Doan and three of his underlings went to the applicant’s home and assaulted her with fists and kicks. They also pulled her hair and pushed her to the wall. The applicant was again threatened with death. In early September 2020, Doan and four of his gangsters attended her home and attacked her with wooden sticks. The applicant lost consciousness during the process and was sent to the hospital by her neighbours. Doan took away some valuable household items and furniture before leaving. The applicant left hospital after two days. She tried to seek help from the police, but was told to pay 10 million Vietnamese Dong as administrative fee. She left the police station as she could not afford the cost. That night, she received a call from Doan, who threatened her to stop enlisting help from the police, failing which she would be killed.  

6.  The applicant was scared after the call from Doan. Therefore, she immediately relocated elsewhere away from her hometown. She lived there from September 2020 to February 2021 until she was told by her ex-landlord that Doan had visited her home.  Out of fear, the applicant relocated to Hanoi.  In May 2021, her parents told her that Doan had known her whereabouts and would come to Hanoi. So she moved to Mong Cai in early June 2021.  Eventually she left for Mainland China on 28 June 2021 and sneaked into Hong Kong illegally on 30 June 2021.

7.  When the applicant last contacted her father on the Sunday just before the interview at the Immigration Department on 10 December 2021, she was informed that Doan was still looking for her.

8.  The applicant was of the view that she could not seek protection from the police because she could not afford paying the large amount of administrative fee that they requested. She also considered relocating to other places within Vietnam not viable because she could still be easily located by Doan given his triad network within the country.  

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 December 2021 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the past behaviours of Doan showed no real intention to severely harm or kill the applicant [12]; (ii) state protection will be available to her upon her return [14]-[18]; (iii) internal relocation is viable [13], [19]-[24] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[39].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board.  On 21 April 2023, the Board conducted an oral hearing.   

13.  The Board noted that the applicant’s evidence in relation to the loan interest and the debt collection incidents were inconsistent, but it gave her the benefit of the doubt that she might have mistaken about the details due to the lapse of time. However, the Board was of the view that the applicant did not face a real risk of harm in light of the duration and intensity of attack by Doan [67]-[81]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk [29]-[30], [83]-[85], BOR 2 and BOR 3 risk [31]-[39], [86]-[87] or Persecution risk [40]-[44], [88]-[92]. Furthermore, state protection and internal relocation were also available to her [52]-[66], [92]-[95].  

14.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

15.  The applicant has filed Form 86 dated 30 November 2023 for leave to apply for judicial review of the Board’s Decision.

16.  The applicant has not raised any specific ground in support of her application in her affirmation.

DISCUSSION

17.  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).

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

19.  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.”

20.  The Board had heard the applicant’s evidence and accepted that she was indebted to the moneylender. However, the adjudicator came to her conclusion on the reasons below.

“78. If Doan seriously intended to harm of kill her, it was to be expected that he and/[or] his enforcers would attack her more seriously, both in terms of duration and intensity. Further, on the first occasion, Doan only warned her, and on the second occasion, she was beaten up briefly and it took her one week to recover from the injuries received. Even on the third occasion when she was attacked with wooden sticks, she had managed to recover in 2 to 3 days. It is apparent that the injuries inflicted was not serious.

79. Further, no harm has been received by her family members.

80. The only reasonable conclusion, in my view, is that they did not in fact seriously intend to harm her, that rather their aim was simply to frighten her into finding the money by any means possible so as to repay the loan.

81. I therefore conclude that the harm and risk the Appellant was likely to face on her return to Vietnam was low. …”

21.  On the evidence before it, the adjudicator was entitled to come to her views above. The applicant has raised no valid reason to challenge the Board’s Decision. There is no reason that this Court should interfere with the Board’s findings of the facts in this case.

22.  The Board had also taken into account of state protection and internal relocation in Vietnam, though it did not state explicitly in the Board’s Decision that those options are open to the applicant.

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

CONCLUSION

24.  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