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

HCAL 1792/2019

[2024] HKCFI 2525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1792 OF 2019

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BETWEEN

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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 16 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. 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 65, is a Vietnamese. She entered Hong Kong as a visitor on 12 September 2004 and overstayed since 27 September 2004. The applicant was arrested by the police on 24 August 2015 and was sentenced to imprisonment of eight months on 9 September 2015 for overstaying. The applicant made a non-refoulement claim on 15 October 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”) because she failed to repay a loan owed to him.

5.  According to the applicant, she earned her living by raising livestock and farming. In 2004, she borrowed money from the creditor to purchase some tools and materials for her business. The applicant was able to repay monthly instalments to the creditor initially. However, after 4-5 months, her livestock and crops were killed in a storm, so that she could no longer afford paying monthly instalments. The applicant told the creditor her situation, who threatened her to repay but never physically hurt her.

6.  As the applicant did not have the ability to repay, she decided to leave Vietnam to avoid the creditor. She applied for her passport in around August 2004 and left for Hong Kong on 12 September 2004 by joining a tour.

7.  The applicant had never contacted her family since her arrival in Hong Kong. She did not report the matter to the police because the creditor had not yet taken any action against her. Meanwhile, the applicant was of the view that internal relocation would not be viable as she believed that the creditor could find her.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 September 2018 (“the Director’s Decision”).

The Director’s Decision

9.  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”);

(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”); and

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

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the lack of physical harm from the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as she claimed [14.1]-[14.2]; (ii) there was no evidence showing that the creditor had means to locate the applicant anywhere within Vietnam [14.3]; (iii) state protection would be available [15]-[18]; (iv) internal relocation would be viable [19]-[24] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[39].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 8 April 2019, the Board conducted a hearing.

12.  The Board found the applicant’s story adequately consistent regarding money lending [40]. Yet, given that the applicant had never suffered any physical injury from the creditor and that there was no evidence showing the involvement of the Vietnamese government in the matter, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [3]-[22], [57]-[77]. In any event, state protection would also be available according to the country of origin information [44]-[56].

13.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

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

15.  The applicant has attached a copy of the Board’s Decision to her affirmation in support of her application without specifying any ground to challenge the Board’s Decision.

DISCUSSION

16.  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).

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

18.  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.”

19.  The Board came to its conclusion above after assessing the evidence. The Board’s decisions are logical and there is nothing amiss about them. There is no reason for this Court to interfere with the Board’s decisions.

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

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

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