DANG THI VINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1725/2019

[2024] HKCFI 1913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1725 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 20 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing.  However, she was absent before the Court on 22 May 2024 without prior notice to the 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, aged 60, is a Vietnamese.  She entered Hong Kong illegally on 4 January 2016 and was arrested by the police on 5 January 2016.  The applicant made a non-refoulement claim on 10 January 2016.  The claim was made on the basis that, if refouled, she would be harmed or even killed by a male and a female creditor as well as their underlings because she failed to repay a loan owed to them.

5.  According to the applicant, she operated a geoducks business in Vietnam. In 2011, she borrowed money from a male and a female creditor for her to expand her business.  She purchased generators, nylon nets, plastic boxes and other equipment for raising geoducks.  Initially, she was able to make a living by selling the geoducks and to repay the monthly instalments to the creditors.  However, by the end of 2014, all her geoducks died due to industrial pollution.  She could not therefore carry on with her business and was no longer able to repay her instalments.

6.  In early 2015, the female creditor sent two of her underlings to collect money from the applicant.  She pleaded for time to pay and they agreed to give her three months’ time.  Three months later, the same two underlings returned with another man.  They were armed with wooden pole, water pipe and knife.  When the applicant told them that she was unable to pay, they vandalised her home.  They left after warning the applicant that they would return in a week and they would beat her up badly or even kill her if she still failed to pay.  The applicant did not report the matter to the police as she considered this was a matter of private dispute, which they would not assist.

7.  On 12 April 2015, the same three men came to the applicant’s home again. As she had no money to pay, they hit her chest, abdomen, back and head with wooden pole and water pipe until she lost consciousness.  The applicant was subsequently taken to the hospital by her elder daughter.  She did not report the incident to the police because she had no money to bribe them.

8.  By the end of April 2015, the female creditor came to the applicant’s home together with three of her underlings and a police officer.  The female creditor agreed to give the applicant another six months to repay her loan and asked her to sign an undertaking.  Meanwhile, the police officer also threatened the applicant that he would arrest her and put her in jail if she failed to pay.

9.  In early June 2015, the male creditor and his wife also came to the applicant’s home demanding loan repayment.  The applicant pleaded for time to pay and the male creditor agreed to give her another six months to repay her loan.  They left after threatening to chop her hand off if she failed repayment.

10.  As the applicant was unable to repay her loan, she left home and relocated to stay with her sister in December 2015.  Eventually, her sister arranged her to enter China and the applicant sneaked into Hong Kong from Shenzhen on 4 January 2016.

11.  The applicant maintained contact with her son while in Hong Kong.  Her son told her not to return to Vietnam because the female creditor had threatened to kill her and her family.  The applicant was of the view that she could not seek protection from the police because they were corrupt and she had no money to bribe them.  She also considered internal relocation not viable because the creditors could locate her through their triad network.

12.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 31 January 2018 (“the Director’s Decision”).

The Director’s Decision

13.  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”).

14.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the low intensity and frequency of past ill-treatment received by the applicant indicated a low future risk of harm upon her return to Vietnam [12]; (ii) state protection would be available to her [13]-[17]; (iii) internal relocation would be viable [18]-[23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[35] or Torture risk [36]-[39].

The Board’s Decision

15.  The applicant appealed the Director’s Decision to the Board.  On 28 May 2019, the Board conducted a hearing.

16.  The Board found that both the female and male creditors were not unconscionable nor ruthless.  Their major concern was to recover their loan rather than harming the applicant and the Board could not see that they had any intention to carry out the threats made [50]-[61].  Although the applicant might receive ill-treatment due to non-payment of loans, such ill-treatment would unlikely reach the minimum level of severity given that past actions of both the female and male creditors had been restrained.  In any event, the country of origin information (“COI”) showed that the Vietnamese government had taken a tougher stance towards loan sharking and illegal debt collection activities in recent years, so that the threats made to the applicant would very likely be mere bluffs, with no intention to be executed or carried out [62].

17.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Torture risk or Persecution risk [63]-[98].  Furthermore, state protection and internal relocation were also available according to COI [7]-[34], [104]-[112].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

18.  The applicant has filed Form 86 dated 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

19.  In her affirmation in support of her application, the applicant reiterated her story of coming to Hong Kong without raising any specific ground.

DISCUSSION

20.  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).

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

22.  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

23.  The Board did not challenge the applicant’s evidence.  It found that the loan sharks’ beating up of the applicant and the threats on her did not reach the level of severity as required under BOR 3 risk.

24.  Paragraphs 50-62 of the Board’s Decision set out the reasons the Board considered that the applicant will not be subjected to real risk of being harm or killed if she returns to Vietnam.  It concluded that the loan sharks were only bluffing in order to make her repay the loans.  The Board had also taken into consideration the COI to say that state protection would be available to her.  It also considered that internal relocation would be viable too.

25.  The applicant has raised no valid reason to challenge the Board’s finding of the facts.

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

CONCLUSION

27.  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