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HCAL 1946/2019
[2024] HKCFI 3451
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1946 of 2019
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Nguyen Thi Binh |
Applicant |
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And |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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And |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 10 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 23 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 October 2018 (the “Notice”).
Background
2. The Applicant is a Vietnamese national. She and her nephew came to Hong Kong illegally on 14 June 1989. During her stay in Hong Kong, she filed a marriage notice with a Hong Kong resident dated 17 June 1995, declaring herself a widow. She submitted a death certificate purportedly in respect of her former husband, which was later confirmed by the Vietnamese Consulate General to be fake. Her and her nephew’s applications for change of status were refused. They were repatriated to Vietnam on 30 May 1997.
3. On 24 September 1998, the Applicant came to Hong Kong again and was allowed to remain as a visitor. On 29 September 1998, she made another fraudulent application for change of status to join her husband as a dependent. Her visa was extended to 18 April 1999 whilst her application for change of status was being processed. She overstayed for 11 years until 20 January 2010, when she was intercepted by immigration officers during an operation. On 22 January 2010, she was convicted of the offence of breach of condition of stay (overstaying) and sentenced to 6 months’ imprisonment. On 20 May 2010, she was discharged from prison and transferred to Castle Peak Bay Immigration Centre (“CIC”). On 9 September 2010, she made a torture claim (the “Torture Claim”) under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Her application was rejected by the Director on 2 October 2013.
4. Subsequently, she made a non-refoulement claim under the Unified Screening Mechanism (the “USM”). In due course, her non-refoulement claim was assessed on all four applicable grounds under the USM, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
5. The following account of the Applicant’s case is mainly based on the information in the torture claim form and the supplementary non-refoulement claim form prepared by her with legal assistance and the record of her screening interviews in the presence of her lawyer. In gist, she claims that she will be harmed or killed by a moneylender due to her inability to repay her loan, if returned to Vietnam.
6. The Applicant, now aged 69, was born in Hung Yen, Hai Duong, Vietnam. She is widowed. She had 7 siblings but she does not know their whereabouts. She received formal education for 3 years and had 14 years’ experience working as a manual worker and a hawker.
7. On the request of her husband she came to Hong Kong in May 1998 to look after her mother-in-law who was seriously ill. She borrowed USD 3,000 from a moneylender at a total interest of USD 1,800 for a term of six months. She also provided her jewellery to the moneylender as collateral. She suspected the moneylender had close ties with the public officials.
8. After she had left Vietnam in 1998, the moneylender went to her home three to four times and told her family that the Applicant had borrowed money from her. The family members responded that the loan had nothing to do with them. The moneylender left and never visited to her home again.
9. In the record of interview, the Applicant admitted that while she was detained in the CIC in 2010 her fear of the moneylender was not very serious. She raised the Torture Claim because she wanted to leave the CIC to look after her husband. Since her husband passed away in January 2011, her fear of the moneylender became severe.
10. She does not believe that the Vietnamese authorities and police could protect her, as the dispute between her and her moneylender is a private dispute. She does not believe internal relocation viable because the moneylender could locate her throughout the country through her powerful network. She is now old and suffering from many illnesses. It would be difficult for her to find employment.
The finding of the Board
11. Having regard to the subject matter and circumstances of the case and the nature of the decision to be made, the Board considered her appeal could be fairly determined without an oral hearing, pursuant to section 12 of Schedule 1A of the Immigration Ordinance.
12. The Board assessed the Applicant’s claim on the basis of the case as she asserted. On her own account, she had never been assaulted or threatened by the moneylender in the past. Once her family member told the moneylender that they had no knowledge of the loan, the moneylender stopped visiting her home. The Board found the moneylender had no intention to kill the Applicant. It considered the absence of the past ill-treatment by the moneylender indicative of a small future risk of harm on her return to Vietnam. As the Applicant said she started to feel her life was in danger only after her husband’s death, the Board considered her fear was speculative and unsupported by objective or credible evidence.
13. On the basis of her evidence, the Board was satisfied that the moneylender was not a public official and there was no evidence of any public or government official or person acting in an official capacity being involved. The Applicant never suffered any serious injury or ill-treatment attaining a minimum level of severity. The dispute between the Applicant and the moneylender is a personal monetary dispute. Any risk arising from that dispute was not on account of one of reasons under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
14. On the basis of authoritative and credible country of origin information (“COI”), the Board considered adequate state protection available in Vietnam. Furthermore, according to the COI, there are public hospitals in Vietnam that provide modern medical service. There are also various social assistance programmes and non-governmental organisations that provide health care for the underprivileged. On this premise, the Board found that the Applicant could further lower the risk of harm by relocating to other areas in Vietnam as the Board doubts if the moneylender has sufficient resources to locate her in such a large country.
15. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds being considered. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
16. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
17. The Applicant did not advance any grounds of review in Form 86. In her supporting affirmation, she reiterated her case that she borrowed USD 3,000 from the moneylender because she needed the money to travel to Hong Kong to see her mother-in-law before she died. She learnt from her friends whilst in Hong Kong that the moneylender was looking for her, and that her family and friends were disturbed by the moneylender. She followed a lawyer’s advice to raise the Torture Claim. In the course of that application, she read documents about the United Nations’ viewpoints on human rights, but her application was rejected because the Director considered her life would not be in danger. She added that she had been living in Hong Kong for 23 years and she did not want to leave, as she would not be able to adjust if she was returned to Vietnam. None of these constitutes a valid ground of application.
Overall scrutiny
18. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim on the basis of her case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
19. Accordingly, the leave application is refused.
Dated the 9th day of December 2024
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( Seline Sze ) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 09/12/2024
Nguyen Thi Binh
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 09/12/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 14358/18/11/201/V2225
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3884/18 (Formerly as RBCZ 2002784/14);
QA T/C 596/13 (Formerly as RBCZ 1337/10);
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5]
[2018] HKCA 524 at [14(1)]
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