TRAN THI THUY QUYNH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1641/2018

[2020] HKCFI 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1641 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:

THE APPLICATION

1.  The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 27 August 2019.

2.  Leave was granted to the applicant to delete the Director of Immigration (“the Director”) as the respondent. The only respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)

The applicant

3.  On 7 November 2016, she entered Hong Kong illegally from Shenzhen and she was arrested by police. She was referred to the Immigration Department on 8 November 2016. On 18 November 2016, by a written representation, she lodged a non-refoulement claim.

4.  In support of her claim, she said that if refouled, her life would be in danger because she owed a person, Hai, a loan which she was unable to repay. Hai threatened to harm or kill her.

5.  In mid-2014, the applicant borrowed 500 million Vietnamese Dong from Hai, a money-lender to run her business in the market. By the end of 2015, there was a fire which destroyed her business in the market. Hai and several of his men came to her home to demand repayment of the loan. They said that if she was unable to repay the loan, she had to sell drugs for them or to act as a prostitute to pay off the loan. Hai’s men pulled her hair and kicked her waist until it bled. They also threatened to kill her. She was scared and left her home. She lived in relative’s place for a year. She worried that one day, they would be able to locate her. Therefore, she came to Hong Kong.

The Director’s Decision

6.  The Director considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 24 October 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 26 March 2018 and 23 April 2018 respectively.

9.  By the Board’s Decision dated 16 May 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a.     This case was a loan dispute between the applicant and Hai [30].

b.     Although Hai had threatened her, Hai had not carried out his threat. Also, though Hai’s men kicked her waist, she did not suffer serious injury [33].

c.     Hai’s treatment did not amount to torture within the meaning of section 37U (1) of the Ordinance [35].

d.     Although the applicant said that the police could not help her because they were corruptive, the information showed that the Vietnamese government had recently undergone reforms to combat corruption. In any event, the applicant had never reported the matter to police [36].

e.     The Board found that the applicant had failed to establish that there were substantial grounds for believing that she would be subjected to torture if she was sent back to Vietnam [37].

f.     Internal relocation is an option open to her in Vietnam [45 & 46].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, she stated the grounds below.

1.     Irrationality – the Board failed to place sufficient weight on the atrocity of the loan shark in Vietnam. They would use weapon to kill the victim if they cannot pay the loan. She considered that she was subjected to Torture risk within the context of section 37U (1) of the Ordinance. Even though she was attacked once, she should be subjected to BOR 3 risk.

2.     Procedural impropriety – the Board failed to make sufficient inquiry about the situation of Vietnam and came to its conclusion subjectively. The Board’s finding that the Vietnam government had reformed to combat police corruption is not true. Corruption in the Vietnam government is still very serious. Internal relocation is not free in Vietnam. One has to obtain permission of the official in charge of the commune. The fact that she stayed in her relative’s place is correct, but she was unable to work there.

DISCUSSION

13.  The applicant appeared before me. She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing.

14.  I shall, for the discussion, set out the relevant legal principles below.

a.     The Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security & Another (2012) 15 HKCFAR 743held:

“…to meet the “minimum level of severity”, it generally involves actual bodily injury or intense physical or mental suffering and that its assessment is ultimately a matter of judgment [173]

…the applicant must show “substantial grounds ... for believing” or “strong grounds for believing” that if deported (or extradited) he faces a “real risk” of being subjected to torture or CIDTP [174].”

b.     The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 decided:

“14. The Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.”

c.     The Court of Appeal in TK v Jenkins & Another  [2013] 1 HKC 526 at paragraph 35 held that the applicant bears the burden of proof regarding internal relocation.

15.  It is quite clear that the Adjudicator was aware of the atrocities of loan sharks in forcing debtors to repay the loan, which is common practice for loan sharks in any other places. Having considered her evidence, the Adjudicator considered that her case did not fall within the context of section 37U (1) of the Ordinance or the BOR3 risk. In my view, he is entitled to form his view on the undisputed facts of the applicant’s case. The first ground fails.

16.  The Adjudicator was also alive to the fact that the Vietnamese police are corruptive. He had also taken into consideration that the Vietnamese government is improving its combat on corruption. I have noted that in the Board’s Decision, the Adjudicator had not set out the Country of Origin Information (“COI”), upon which he relied to support the above view. However, since the Board had taken the highest of the applicant’s case and found that she had no merit, this issue will not assist her case. He had also noted that the applicant had not reported the assault by Hai’s men to police. There was no evidence from the applicant that her case would not be accepted by the police in Vietnam.

17.  As the Board found that on her own facts, she would not be subjected to any of the risks mentioned above, it would not be necessary for the Board to consider further issue such as internal relocation. However, the Board had taken this issue on board. The applicant has the burden of proof on internal relocation. She had stated her case of living in her relative’s place for about one year without incident. There is no evidence from the Board’s Decision that she had raised the issue that she would require permission from the official of the commune or that she would be unable to work if she lived away from her own location. The applicant is not allowed to raise it at this stage. The second ground fails too.

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

CONCLUSION

19.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision.

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