NGUYEN THI TUOI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1798/2019

[2023] HKCFI 1830

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1798 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 Applicants being absent in open court;

1.  Leave to apply for Judicial Review for 1^st and 3^rd applicants be refused; and

2.  Leave to apply for Judicial Review for 2^nd applicant be dismissed.

THE APPLICATION

1.  The applicants are a family. The 1^st applicant is the mother, the 2^nd applicant, aged 25, is her daughter and the 3^rd applicant, aged 33, is her son.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 18 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.  The applicant appeared before the Court on 31 May 2023.

The applicants

4.  The applicants are nationals of Vietnam. They entered Hong Kong illegally on 22 March 2015 and surrendered to the Immigration Department on 24 March 2015. On 15 May 2015, they lodged the non-refoulement claims. Their claims were made on the same basis that, if refouled, they would be harmed or killed by the Vietnamese police.

5.  In short, the 1^st applicant, following her husband, became a Catholic. The 1^st applicant’s husband worked as the assistant to the priest. Under his influence, the applicants often went to the churches. Since 1999, the Vietnamese government had been inquiring about her husband’s whereabouts with the aim to stop him from preaching. From 1998 to 2003, the 1^st applicant’s husband had been traveling to different areas to preach. Yet, the police continued to harass the applicants for the husband’s act. In 2001, the 1^st applicant sent her daughter to live with the babysitter whilst her son continued to volunteer for the churches. But he told the 1^st applicant that the police would often check his identify and threatened to arrest him if he did not stop working for the churches. Meanwhile, the 1^st applicant had been moving around to avoid the inquiries from the police.

6.  On 9 February 2015, the police arrested the 1^st applicant’s husband. One day in March 2015, the police visited the 1^st applicant again and summoned her to the police station to assist the investigation of her husband’s offence. Out of fear, the 1^st applicant gathered her son and daughter and fled to Hong Kong for protection. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 10 February 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicants’ claims 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”).

8.  By way of the Director’s Decision, the Director assessed their claims jointly and dismissed their claims. In elaboration, the Director found that (i) the past events indicated that the risk of harm was low upon their refoulement [11]-[13]; (ii) state protection would be available to them [14]-[18]; and (iii) internal relocation was a viable option [19]-[24].

The Board’s Decision

9.  The applicants appealed the Director’s Decision to the Board. On 19 February 2019, the Board conducted an oral hearing for their appeals, during which they were assisted by an interpreter [23].

10.  Having considered the evidence, the Board found that the claimed injuries sustained did not attain a minimum level of severity. First, on the applicants’ own evidence, the Vietnamese police never physically hurt them; second, during the alleged enquires and visits, the police never harm the 1^st applicant or her son. The daughter had been staying with the babysitter and was never inquired by the police; Third, there was no evidence that they required psychiatric treatments; and fourth, the alleged inaction of the police was their own speculation without any evidential support [38]-[46]. Meanwhile, the country of origin information showed that state protection and internal relocation were both available to them [47]-[64].

11.  For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

12.  The applicants filed Form 86 on 28 June 2019 for leave to apply for judicial review of the Board’s Decision.

13.  The 2^nd applicant filed an affirmation to withdraw her leave application.

14.  In the 1^st applicant’s affirmation in support of their application, the 1^st applicant has raised the grounds below.

(1)  The Board was in error to say that her complaint was isolated events and the Vietnam government, as a whole, was not corrupt. The Board’s view is subjective. This can be illustrated by the news that the prime minister of Vietnam had resigned because of the corruption of his government. This also shows that the Vietnamese government cannot control corruption within the government.

(2)  The Board had not taken on board that her husband was forbidden to preach and was detained by police. The Board had not considered that the family will also suffer pressure from the police’s abuse of power.

(3)  In paragraphs 75-80, the Board has not given good reasons to say that she will not be persecuted. Also, the Board said that she would be protected by the state. However, persecution comes from the state.

DISCUSSION

15.  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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant confirmed that she was at liberty to speak before the Board.

17.  It is clear that the 2^nd applicant will not pursue her leave application. As such, her application will be dismissed.

18.  The 1^st applicant has put forth the grounds set out in paragraph 14, supra. The fact that the prime minister of Vietnam resigned because he was unable to control corruption in Vietnam means that the government is determined to deal with the issue of corruption. The COI showed that the Vietnamese government has been implementing polices to allow religious freedom and revenues for public complaints against the government departments. The Board was not convinced that there is nothing the government of Vietnam can do to combat corruption. The Board had taken into consideration of her husband having been arrested and detained. However, the Board found no evidence that the 1^st applicant will also be arrested or detained. According to the 1^st applicant, she was only invited to attend the police station for investigation whereupon she left Vietnam.

19.  The Board, having considered the COI, found that the 1^st applicant will obtain state protection because there is no evidence to show that the Vietnamese government cannot control corruption in the country. If the 1^st applicant alleged psychological pressure, it will be for her to adduce expert evidence to the Board for consideration. According to the Board’s Decision, the 1^st applicant did not require psychiatric treatment.

20.  As to persecution, the Board found that there was evidence to show that the 1^st applicant had been persecuted whilst she was in Vietnam. The definition of persecution was not spelt out in the Convention. The Board had applied the test of severity in contravention of human rights or causing serious bodily injury. Applying the test to the 1^st applicant, there was no evidence to support her claim that she will be persecuted if she returns to Vietnam. This is the Board’s finding, which cannot be found to be Wednesbury unreasonable.

21.  All of the grounds do not assist the 1^st applicant’s application.

22.  The 1^st applicant fails to show that she has any realistic prospect of success in their proposed judicial review.

CONCLUSION

23.  As the 2^nd applicant has applied for leave to withdraw her leave application, I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint 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