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

HCAL 967/2018

[2020] HKCFI 2588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 967 OF 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 1957, is a national of Vietnam.  On 16 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 [27-45] 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 creditors.  She claimed that in 1989 she borrowed a total of 50,000,000 VND from two creditors, Bao and Trang, for her slaughter house business.  She also bought two pigs from a police officer, Dong, on credit.  In 1990, she became bankrupt and was unable to repay her creditors.  Dong “confiscated” her house and property to offset her debt to him.  The other two creditors also demanded for repayment of their debts.  However, they did not harm her or her family members.  The applicant then moved to reside in Mong Cai city.  She was later deceived by an agent to leave Vietnam for China and was then forced to marry a farmer in China.  She gave birth to a son in 1993.  Later in that year, she left the farmer, but was again “sold” by a Vietnamese to another man in China and gave birth to another son during their relationship.  In 2012, she returned to Vietnam and started her business of selling pork.  The business dropped in 2013.  Since then, Bao and Trang pursued their debts with her totalling 20,000,000 VND.  At the beginning of 2015, Trang even came with triad members and threatened to kill her if she did not repay the loan.  In fear of her safety, she left her home village and resided in Mong Cai for 2 months before she departed Vietnam for China unlawfully.  She later entered Hong Kong via Shenzhen.

The Director’s decision

4.  By a notice of decision dated 18 April 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 Board did not conduct an oral hearing.  By a decision dated 12 March 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

6.  The Board gave reasons for rejecting the applicant’s claimat para [59-83] of its decision.  In a nutshell, the Board observed that the applicant’s creditors only threatened her verbally and did not inflict any actual injury on her.  It did not reach the minimum level of severity as required by law to amount to torture or CIDTP [62].  Moreover, her creditors did not harm her or her family member since 1990 when she was bankrupted.  When she lived in China, they did not pursue the debt with her family members.  They only started to pursue their loans with her in 2013 with verbal threats [64].  The Board found that her creditors only intended to pressurize her for repayment.  They did not have intention to inflict actual harm on her [65].  Her worries that Dong’s children would take revenge on her is purely her own speculation [67].  In any event, the Board found that internal relocation is a viable option for the applicant [83].

Application for leave to apply for judicial review

7.  The applicant filed a Form 86 on 29 May 2018 for leave to apply for judicial review of the decision of the Board.

8.  In the Form 86, the applicant did not set out any grounds for the relief sought. In her affirmation in support, she repeated her claim that she cannot return to Vietnam as her creditors are still looking for her and she is not able to repay the debt.

9.  By a letter dated 24 June 2020 sent to her reported address, the court invited the applicant to submit any submissions that she would like to make and confirm whether an oral hearing is requested.  Since then, the applicant has not made any response or submission to the court.  The application is therefore considered on the papers.

Discussion

10.  The relevant principles regarding 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.  This Observations for the Applicant will only focus on discussing the latter’s decision.

12.  In the present case, the Board did not take issue with the applicant’s asserted primary facts.  It gave her account of facts the most favourable interpretation.  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.  It was only a regurgitation of what she told the Director and the Board.  There is no reasonably arguable basis to challenge the Board’s findings.

15.  In my judgment, 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 to constitute torture or CIDTP and is indicative of an unreal risk of harm at the most.  The decisions of the Director and the Board are wholly reasonable.

16.  The Board did not hold an oral hearing.  It was a determination after considering the principles set out in ST v Betty Kwan [2014] 4 HKLRD 277.  The Board had reminded itself of the relevant authority and principles on oral hearings and considered that it was not necessary to have one in the present case.  The Board gave detailed explanation for such decision [3].  It correctly applied the principles and considered all relevant factors for its decision.

17.  There was no challenge with regard to procedural regularity and fairness.  Bearing in mind that the applicant personally attended the screening interview with the immigration officer with legal assistanceand the Board accepted the version of facts as advanced by the applicant, I do not find the course adopted by the Board to be irregular or unfair.

18.  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.

Conclusion

19.  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.

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