TRUONG NGOC LINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2038/2019

[2024] HKCFI 2555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2038 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 20 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 20 June 2019. Her application was filed on 17 July 2019, which is about 3 weeks’ late. This issue will be dealt with below.

2.  The applicant did not request an oral hearing. 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, aged 66. In 2002 and 2012, she came to Hong Kong illegally and was repatriated after serving her sentences for the offences she had committed. On 27 July 2015, she came to Hong Kong again and surrendered to the Immigration Department. By written signification dated 23 September 2015, she raised a non-refoulement claim on the basis that, if refouled, she will be harmed or killed by the creditor because she was unable to repay her debts and her husband’s debts.

5.  Briefly stated, between 2012 and 2014, she and her husband had borrowed money from the creditor in Vietnam for their business, which failed. They were unable to repay to the creditor. The creditor threatened her and her husband to repay the debts. She had to live in some other places such as her son-in-law’s home in order to avoid the creditor. In 2015, her husband left Vietnam for Hong Kong. The creditor called her by phone and spoke foul language, demanding her to repay her and her husband’s debts. In July 2015, she left Vietnam for Hong Kong. She considers that the government would not be able to protect her and internal relocation is not viable as she has to register her address with the government in Vietnam. Details of her story are set out in paragraph 6 of the Notice of Decision dated 4 May 2017 (“the Director’s Decision”).

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. The Director found that: (i) the low intensity of past ill-treatment from the creditor is indicative of a low future risk of harm upon her return to Vietnam [13]-[16]; (ii) state protection will be available to her upon her return [18]-[21]; (iii) internal relocation is viable [23]-[30].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 1 March 2019, the Board conducted an oral hearing.

9.  Having considered the applicant’s evidence, the Board found:

“43. … Her story is internally adequately consistent as to the money lending and the series of loan collection incident after the overdue loan owed to the creditor.

59. In this regard, reasonable protection of the country of the Appellant’s nationality is available, and there is no ground based on well-founded fear for refusing it. Also, avoidance on loan repayment is clearly not one of the RC reasons.

60. The Appellant has failed to establish that she will be subjected to persecution for RC reason if she is refouled to Vietnam.

62. As I find no risk that warranted non-refoulement protection, so it was not necessary for me to go on to discuss internal relocation. ”

10.  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

11.  The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant enclosed a copy of the Board’s Decision without specifying any reason to challenge the Board’s Decision.

DISCUSSION

13.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

14.  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).

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

16.  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. ”

17.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

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

DISPOSITION

19.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.