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HCAL 1106/2018
[2021] HKCFI 201
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1106 OF 2018
BETWEEN
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Nguyen Thi Chien |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge C P Pang:
Leave to apply for judicial review be refused.
Observations for the applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.
2. The applicant, born in 1968, is a national of Vietnam. On 15 July 2015, she surrendered herself to the Immigration Department claiming that she had entered Hong Kong unlawfully via Mainland China. She then lodged a non-refoulement claim and was subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [16-27] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her and husband’s creditors. She claimed that in 2013 and 2014, her husband and she borrowed 600 million VND and 200 million VND respectively from creditors to establish their business. As they were unable to repay the debt, they had been harassed and even threatened with death by their creditors on many occasions. Her husband could not stand the pressure and ran away first. The creditors still pursued the applicant. Eventually, she was unable to stand the mental stress of being chased by her creditor and her husband’s creditors. She also left Vietnam for China on 5 July 2015 and sneaked into Hong Kong via Shenzhen later.
The Director’s decision
4. By a notice of decision dated 13 November 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The Director assessed her risk of harm as low and state protection and internal relocation are available to the applicant. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
5. The applicant attended a hearing before the Board on 5 March 2018.
6. By a decisiondated 16 April 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
7. The Board gave reasons for rejecting the applicant’s claim at para [30-43] of its decision. In a nutshell, the Board observed that despite the applicant’s creditors repeated threatening from December 2014 until her departure from Vietnam, the creditors of the applicant or her husband did nothing at all to harm her or her family. It was therefore clear that their threats were merely a measure to pressurize her to repay the loans [31]. The applicant failed to establish that there are substantial grounds for believing that she would be subjected to torture [34] and the ill-treatment she received failed to attain a minimum degree of severity required for BOR 3 protection [36]. Moreover, internal relocation is viable and she should have no difficulty to live a normal life in places other than her own district [43].
Application for leave to apply for judicial review
8. The applicant filed a Form 86 on 15 June 2018 for leave to apply for judicial review of the decision of the Board.
9. In the Form 86, the applicant did not set out any grounds for the relief sought. In her affirmation in support, she repeated her claimed fear and that she disagreed with the decision of the Board.
Discussion
10. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
11. When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. Thisdecision will only focus on discussing the Board’s decision.
12. In the present case, the Board did not take issue with the applicant’s asserted primary facts. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.
13. As mentioned above assessment of evidence, the risk of harm and availability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.
14. The complaint raised by the applicant in her affirmation contained nothing to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. There is no reasonably arguable basis to challenge the Board’s findings.
15. Indeed, the applicant’s claim is extremely weak. Even on her own account, the alleged past ill-treatment was of low intensity and frequency. It came nowhere near the level of severity required by law for his claimed protection and is indicative of an unreal risk of harm at the most. The decisions of the Director and the Board decision are wholly reasonable.
16. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.
Disposition
17. For the reasons given, there is no prospect of success in the applicant’s intended application. Accordingly, I refuse to grant leave for judicial review.
Dated the 28th day of January 2021
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(M. O. WONG)(Ms) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b)issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 28 January 2021
Nguyen Thi Chien
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 January 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9249/17/11/260/V1818
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2551/17 (Formerly RBCZ 10925/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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