PHAM THI MICH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1449/2019

[2024] HKCFI 1095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1449 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 15 May 2019 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.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC 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. She surrendered to the Immigration Department on 25 August 2015 and admitted she had illegally entered Hong Kong via Mainland China on 21 August 2015. The applicant lodged a non-refoulement claim on 25 August 2015 on the basis she will be harmed or killed by a creditor due to a loan dispute if she returns to Vietnam.

5.  In brevity, it was the applicant’s husband who had apparently taken out a loan in around 2011 to expand his fishery business; the details of which (eg loan amount, payment terms) are unknown to the applicant. However, in the same year, her husband absconded and the creditor began to seek repayment of the loan from the applicant. Through borrowing from friends and relatives, and working part-time, she was able to repay the creditor for about two years. In 2013, she was unable to continue the repayment. As such, the creditor’s henchmen came to her home and beat her, threatening to kill her if the loan remains outstanding. The police were called and she gave her statement. However, there was no further investigation as the police deemed the loan amount was minimal. As for her injuries, she was hospitalized for nearly three weeks. In around 2014, six months after the above incident, she was attacked again in her home for the outstanding loan. She did not require hospitalization this time and did not report the matter to the police. In around mid-2014, she was attacked for the third time at home, her injuries being even visible when she arrived in Hong Kong. In any event, in fear of her own safety, she made arrangement to flee Vietnam. After arriving in Hong Kong, she claimed that her parents still received threats by the creditor and in early 2016, she was beaten by unknown Vietnamese individuals near Mongkok (which she claimed was because of the creditor). As she feared this might have repercussions in Vietnam, she did not report these matters to the police. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 21 March 2017 by the Director (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. In elaboration, the Director found that: (i) the risk of harm was assessed to be low as the applicant’s behavior was inconsistent with her alleged claim, namely there was no reason to stay in her home for some three years despite knowing the creditors would come and demand payment of the loan [15]; (ii) the attacks by the creditor were to pressure her to repay the loan and not to kill her; and there was no indication they had resources to locate her throughout Vietnam [16]; (iii) the loan dispute is a private matter and did not involve the Vietnamese government [17]; (iv) state protection was available based on credible and objective COI [18] – [21]; and (v) internal relocation was a viable option [22] – [26].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 15 January 2019, the Board conducted an oral hearing for her appeal, during which she elected to give evidence to the Board [32].

9.  The Board recapped the applicant’s claim [1] – [31]. Having considered the totality of the evidence, the Board rejected the centerpiece of her claim, ie the alleged loan dispute with the creditor [46]. There were several reasons which led to the Board’s adverse finding, such as: (i) the description of the loan was vague and lacking particulars; and it was unbelievable why the applicant would keep paying the creditor despite knowing almost nothing about the loan [45a] and [45b]; (ii) her evidence in respect of the attacks against her were self-contradictory, on the one hand she asserted she feared the creditor would harm her children, on the other hand she allegedly fled between mid-2013 and early 2015 without arranging any protection for her children [45c] and [45d]; and (iii) the disappearance of her daughter and her assault in Hong Kong due to the creditor are merely speculations with no supporting evidence [45e] and [45f].

10.  In assessing the individual grounds of non-refoulement protection, the Board found the following: (i) the applicant’s alleged attacks, even if they were accepted, did not establish substantial grounds to show a foreseeable and real risk of torture [48] – [50]; (ii) there was no involvement of the state nor state acquiescence in any form; and based on credible and objective COI, state protection was available if she was refouled [51] – [60]; (iii) the evidence failed to substantiate her claim under BOR 2 and 3 risk, and also Persecution risk [61] – [76]; and (iv) internal relocation was open to her with plenty of options in other regions of Vietnam based on COI [77] – [81].

11.  For the above reasons, the Board found the applicant’s claim failed on all applicable grounds and dismissed her appeal.

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

12.  The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In her affirmation in support of her application, the applicant has raised the grounds below.

(1)  The Director or the Board did not conduct medical examination before they speculated with blind eyes that her injuries were not serious under BOR 3 risk. The applicant had produced 2 photographs to show the scares on her face. The applicant submitted that she had to receive plastic operation for her face, supported by exhibiting the bills.

(2)  The applicant further submitted that her creditor had broken her leg and they had also used iron rod to hit her face and head, causing serious injuries, showing photographs to prove her case. The evidence is to counteract the Board’s finding that she could not substantiate her claim under BOR 3 risk.

(3)  The Board had cherry-picked COI in support of its findings, without taking into consideration that the COI are third party information only. Police in Vietnam is also corrupt. This is shown by the news that the ex-Prime Minister had resigned because of the serious corruption in Vietnam. The Board had taken a positive view of the Vietnamese government only. The applicant had attempted to report the matter to the Vietnamese police, who demanded money from her for investigation. The Board had not taken impartial stance in the investigation. This is unfair to the applicant.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 Decisions 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.  For the reasons given in paragraphs 9 and 10 above, the Board found that the applicant failed to establish her claim. It did not accept her evidence because of vagueness and inconsistencies in her evidence to prove the loan. The Board had taken on board applicant’s injuries. The assessment of the seriousness of her injuries is a matter for the Board. It may be a matter of opinion or view of the adjudicator. However, this is the Board’s discretion, which the Court should not interfere with lightly as held by the Court of Appeal.

18.  The Board did not accept the applicant’s evidence on the alleged loan. The applicant has not been able to refute the Board’s findings on the vagueness and inconsistencies of her evidence. In the circumstances, the Court finds that there are no sufficient reasons from the applicant to interfere with the Board’s Decision.

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

CONCLUSION

20.  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