LE THI LEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1988/2019

[2024] HKCFI 2492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1988 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 5 July 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 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 52 is a national of Vietnam. On 27 July 2015, she surrendered to the Immigration Department, admitting that she entered Hong Kong illegally on 20 July 2015. By written signification, the applicant lodged her non-refoulement claim on 14 January 2016. Her claim is on the basis that, if refouled, she will be harmed or even killed by her creditor called “Hung” because she was unable to repay her loan.

5.  According to the applicant, she and her husband have 2 children in Vietnam. She started her seafood business in 1984. Between 2011 and 2013, she had borrowed about 1 billion VND from Hung to expand her business. Her business went down since 2014 and she was unable to pay the interest. Hung demanded her to repay her loan by telephone calls, threatening her that if she failed to pay up, he would send people to beat her up. She tried to avoid Hung by moving to live in her relative’s home in Quang Ninh Province. However, she still received phone calls from Hung. She then moved to Mong Cai where she was beaten up by 4 or 5 men. She believed that they were sent by Hung. Ultimately, she left Vietnam for Hong Kong in July 2015. She did not seek police protection because she feared that Hung would know about it. She does not consider internal relocation is viable as Hung will be able to locate her.

The Director’s Decisions

6.  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”); and

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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that if she returned to Vietnam: (i) the level of risk was low [13]-17; (ii) state protection would be available [18]-[23]; and (iii) internal relocation was viable [24]-[29].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 30 January 2019, the Board conducted an oral hearing for her.

9.  Having considered the applicant’s evidence [63]-[67], the Board came to the conclusion below.

“85. The Appellant’s evidence relating to the facts on which her claim was based was questionable and unreliable, and I did not find her evidence credible. …

88. From the finding of facts, I found that the Appellant’s evidence was questionable and unreliable. I therefore rejected her claim that she was indebted to a moneylender called Hung, and that she had a genuine fear of the risk of harm from a moneylender if she were returned to Vietnam. There is no real chance that the Appellant will be harmed or otherwise ill-treated, if she is refouled to Vietnam. State protection is also readily available to the Appellant, if she wanted to resort to police or state protection.

92. Internal relocation is another factor that has been assessed in the Director’s Notice of Decision. The Appellant is an able bodied 47-year old woman with 31 years working experience in Vietnam. I do not find that it would be unduly harsh for her to relocate internally to a place of her choice in Vietnam. …”

10.  For the above reasons, the Board dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 15 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 says she does not agree with the Board’s Decision. She enclosed a copy of the Board’s Decision without stating any specific reason to challenge the Board’s Decision.

DISCUSSION

13.  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).

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

15.  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.”

16.  From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues he had raised with her. In my view, the Board was entitled to come to its views above.

17.  The applicant has raised no valid ground to challenge the Board’s Decision.

18.  The applicant 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 grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.