TRINH THUY HUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2068/2019

[2023] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2068 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, her application is therefore dealt with on paper.

The applicant

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 31 July 2016.  On 1 August 2016, she was arrested by the police.  On 14 February 2017, 27 February 2017, 9 March 2017 and 24 March 2017 respectively, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Binh due to an outstanding debt. 

4.  In short, the applicant and her husband took out a loan from Binh for their shipping business in February 2014.  However, the ship sunk in June 2015, resulting in a significant loss in the applicant’s business.  As a result, the applicant and her husband defaulted the loan payments.  Her husband escaped. In the end of June 2015, Binh brought some unknown gangsters to chase the applicant for repayment.  They attacked the applicant, causing injuries to her right shoulder and her leg broken.  In July 2015, her husband visited her at the hospital.  Upon knowing the information, the creditor brought the gangsters to the hospital and attacked her husband.  On 3 July 2015, the creditor visited the applicant’s house again and assaulted both her and her husband.  The couple escaped to An Lao.  Yet, they were located and assaulted by the creditor there.  As the reports to the police were of no avail, the applicant fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 30 July 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.  The Director considered the applicant’s claim 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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the past experience indicated that the risk of harm upon her refoulement was low [11]-[13]; (ii) state protection would be available to her [14]-[17]; and (iii) internal relocation was a viable alternative [18]-[25].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  On 2 May 2019, the Board conducted an oral hearing for her appeal, during which she was legally represented. 

8.  The Board recapped the applicant’s claim [3]-[17] and considered her oral testimonies [18]-[27].  It also examined the country of origin information (“COI”) [28].  Having considered all the information, the Board made the following findings.  It found that the applicant failed to produce any documents in support of her claims, such as the loan agreement, her shipping business, her vessel or the medical reports [35].  It also noted the inconsistencies in her written statement and oral testimonies [36]-[40]. Meanwhile, it found that it was unreasonable for the creditor to lend the sum to the applicant and her husband who had no prior experience in shipping industry [42]-[43].  Further, the COI showed that state protection and internal relocation would be available to the applicant [55]-[62].

9.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

10.  On 19 July 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant has filed an affirmation, in which she enclosed the Board’s Decision, but did not set out any specific ground in support of her application.

DISCUSSION

12.  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 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).

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

14.  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.”

15.  The Board had, for the reasons given above, rejected the applicant’s evidence in support of her claim.

16.  There is no valid ground from the applicant to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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