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

HCAL 495/2022

[2024] HKCFI 3139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 495 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Tran Thi Thuy (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 2 June 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 April 2017 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  The DOI Decision and the Board’s Decision were in Chinese while the Applicant completed the Form 86 herein (“Form 86”) in English without interpretation but filed her English supporting affirmation (“Supporting Affirmation”) with the assistance of an interpreter. On 29 August 2024, the Applicant filed a further affirmation in English also with the assistance of an interpreter applying to withdraw this intended judicial review application (“Withdrawal Application”).  She also filed an English statement dated 29 August 2024 (“Statement”) without assistance of interpreter.  As the Applicant made all her applications in English, I decide to issue this decision in English.

Background of the Applicant

3.  The Applicant is a Vietnamese. She was born on 11 September 1972.

4.  She was born and raised in Haiphong (海防), Vietnam.  She received education up to primary 4.  She had previously been staying in Hong Kong from 1989 to 1996.  Her son and daughter were born in Hong Kong. 

5.  She returned to Vietnam in 1996 and engaged in farming and fish farm business until she came to Hong Kong again in 2015.

The Claim

6.  The Applicant relied on the following facts for her claim. 

7.  She started her fish farm in about 2002.  In 2010, she needed funds to install more watering facilities and to purchase fry for her fish farm.  She borrowed VND 350 million (“Loan”) from her daughter’s boyfriend (“Creditor”).  The Loan was interest free and to be repaid when her fish farm made profits.

8.  Unfortunately, in late 2010, all her fry died for unknown reasons and her fish farm was subsequently closed down.  She was unable to repay the Loan.  When the Creditor visited her home, she told the Creditor about her business failure and promised to repay the Loan in future.  The Creditor did not make any threat to her.

9.  The Applicant said that the Creditor was a loan shark with triad society background.

10.  In November 2014, the Creditor came to the Applicant’s home to demand repayment of the Loan.  When the Applicant was unable to repay, the Creditor shouted at her and threatened to kill her if she still failed to repay the Loan by May 2015.  The Applicant promised to repay and the Creditor left without harming her.

11.  To avoid the Creditor, the Applicant moved to stay with her cousin in 廣寧省 on 10 May 2015. The place was about 7 hours travelling by bus from her hometown.  She stayed there until 16 June 2015 when she left Vietnam for Mainland China.  Nothing eventful happened during her stay at her cousin’s place.  From China, the Applicant came to Hong Kong to claim protection.

12.  The Applicant claimed that she would be ill-treated or killed by the Creditor or his followers if she were returned to Vietnam because she was unable to repay the Loan.

Procedural history

13.  The Applicant surrendered to the Immigration Department on 24 June 2015.  She claimed to have entered Hong Kong illegally on 22 June 2015.  By written representations of 20 July 2015 and 21 August 2015, the Applicant lodged the Claim. 

14.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights, Cap 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

15.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (the “Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

16.  On 17 June 2022, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant named both the Board and the Director as proposed respondents in the Form 86.

17.  The Applicant also filed the Supporting Affirmation on 17 June 2022.

18.  On 29 August 2024, the Applicant filed the Withdrawal Application and the Statement applying to withdraw this intended judicial review application stating that it was safe for her to return and that she made the Withdrawal Application by her own free will.

The DOI Decision

19.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by the Creditor upon her return to Vietnam.

20.  The Director noted that the Creditor had never actually harmed the Applicant.  The low intensity and low frequency of past ill-treatment from the Creditor was indicative of a small future risk of harm upon the Applicant’s return to Vietnam.  Her alleged ill-treatment, whether physical or mental, did not attain a minimum level of severity.  The Creditor had the opportunity to seriously harm or kill the Applicant when he visited her home but he refrained from doing so.  This showed that the Creditor did not really intend to kill or seriously harm the Applicant.  He only wanted to press her to repay the Loan.

21.  The Applicant’s allegation that the Creditor had triad society background was not supported by any evidence.  

22.  Although the Applicant asserted that the Vietnamese police would not give her any protection, this was unsupported by any evidence.  She had never reported the threat of the Creditor to the Vietnamese police.  On the issue of state protection, the Director after considering the relevant country of origin information (“COI”) found that reasonable state protection would be available to the Applicant if she encountered any unlawful threats from the Creditor upon her return to Vietnam.

23.  The Applicant’s dispute with the Creditor originated from the Loan and it had nothing to do with the police or the government authorities.  There was no basis for her to claim that the police would acquiesce to the Creditor’s illegal threats or fail to protect the Applicant.

24.  The Director noted that the Applicant did not encounter the Creditor when she was staying with her cousin before she left Vietnam.  The Director was of the view that internal relocation would be viable.  If the Applicant moved to Hanoi, the Creditor would have great difficulty in locating her.  As an able bodied adult, the Director found that it would not be unduly harsh to expect her to relocate to other areas in Vietnam and lead a normal life. 

25.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

26.  The Board, after considering the Applicant’s claims and her evidence including her oral evidence given at the hearing before the Board, found that the Creditor did not have any intention to seriously harm or kill the Applicant as the Creditor had never actually harmed her.  The ill-treatment alleged by the Applicant did not attain a minimum level of severity.  Her right to life under BOR 2 was not at risk.

27.  The Board found that the Applicant’s allegation that the Creditor had triad society background and had connection with government officials was based on hearsay information without supporting evidence.

28.  The dispute between the Applicant and the Creditor was purely private dispute without any official involvement of the Vietnamese government.  It has nothing to do with race, religion, nationality, membership of a particular social group or political opinion.  The Board was of the view the COI showed that reasonable state protection would be available to the Applicant after she returned to Vietnam.

29.  The Applicant did not encounter any problem when she was staying with her cousin.  The Board agreed with the Director that internal relocation was viable to the Applicant and Hanoi was an available option.

30.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

31.  In a judicial review, the court does not step into the shoes of the decision makers.

32.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

33.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

34.  In the Form 86, the Applicant put forward the following grounds for her intended judicial review:

(1)  the gangsters in Vietnam are cruel and violent.  They disregard the law and are willing to kill people to satisfy their anger and ferocity;

(2)  internal relocation is not feasible because of her poor health and personality causing difficulties for her to adapt to new place and to find a job;

(3)  the gangsters have nationwide social network and clandestine connections with corrupt government officials and police to find out her new address in another place in Vietnam; and

(4)  the DOI Decision and the Board’s Decision were wrong or unsafe and it was wrong for the Board to rule that the Applicant was unreliable.

35.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision.

36.  In disputing the findings on availability of state protection and feasibility of internal relocation, the Applicant seeks to challenge the findings of fact of the Director and/or the Board which is not permissible in a judicial review. 

37.  In fact, the Director had in §15 and §§20-24 of the DOI Decision set out the reasons for his finding on the feasibility of internal relocation.  In §14 and §§16-19 of the DOI Decision, the Director had set out the grounds for his findings of non-involvement of government officials to the alleged risks and the availability of state protection.

38.  The Board had also in §43 of the Board’s Decision considered the Applicant’s claim of the Creditor having triad society background but rejected such allegation as hearsay. 

39.  State protection and internal relocation were further discussed in details in §§47-53 and §§54-59 of the Board’s Decision with reference to the relevant COI. 

40.  The Board found that the Applicant’s assertion that the Creditor had triad society background was unsubstantiated.  The Board considered that the influence of the Creditor, if any, was localized at the Applicant’s home area.  The Creditor did not locate her when the Applicant was staying with her cousin in 廣寧省.

41.  The Board was of the view that reasonably sufficient state protection would be available to the Applicant in Vietnam upon her return.

42.  The Applicant provided no evidence to substantiate her alleged health problem which might hinder her internal relocation.  It was only her bare assertion that she could not relocate to other places of Vietnam.  Such bare assertion was not supported by her evidence that she was able to live in 廣寧省 before she left Vietnam.  This ground is not reasonably arguable for her intended judicial review.

43.  The Board did not find that the Applicant was unreliable.  The Board assessed her claims based on her evidence without querying her credibility.  The Board only found that her evidence was insufficient to substantiate her claims.  This ground is also not reasonably arguable.

44.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.  The Applicant also provided no particulars or specifics on matters stated in the Form 86 and referred to in §34 above.  They were only vague and bare assertions.

45.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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 high standards of fairness. 

46.  The Board found that the Applicant did not have substantial grounds to show that she would face any of the torture risk, persecution risk, BOR 2 risk or BOR 3 risk if she were returned to Vietnam.  The ill-treatment alleged by the Applicant did not attain a minimum level of severity.  Returning the Applicant to Vietnam would not expose her to any of the proscribed risks including risk of arbitrary deprivation of life. 

47.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

48.  The Applicant subsequently filed the Withdrawal Application on 29 August 2024 stating that it was safe for her to return to her country and she wanted to return to her country as soon as possible.

49.  The Applicant further confirmed that she made the Withdrawal Application out of her own free will.

50.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

51.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“ The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

52.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

Postscript

53.  The court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not provided to the court any new address for service.  The court shall still send a copy of this judgment and the seal order to the Applicant at her address stated in the Withdrawal Application.  The court will send a further copy set of this judgment and the sealed order to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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