NGUYEN THANH THINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1518/2019

[2024] HKCFI 1567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1518 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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decisiondated 31 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 39, is a Vietnamese.  She entered Hong Kong illegally from Shenzhen on 19 July 2015.  She surrendered to the Immigration Department on 27 July 2015 and she lodged a non-refoulement claim on 17 September 2015 and 12 October 2015.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“Lien”), who had triad background, because she failed to repay the loan.

5.  According to the applicant, her husband took out a loan to startup a fish farm business in July 2012.  The seedlings died soon after and her husband was unable to sell any produce.  The applicant then decided to obtain a loan from Lien in mid-2013 so that the fish farm can continue operating.  By the end of 2014, 80% of the fish died from infection and the applicant could not afford buying further seedlings.  As a result, the applicant was unable to repay the loan to Lien.

6.  In December 2014, Lien went to the applicant’s home demanding loan repayment, but he agreed to extend the deadline to March 2015 upon her request. In March 2015, when Lien and three of his underlings went to the applicant’s home for debt collection, she and her husband were away.  Lien and his underlings then left after damaging some items in the applicant’s home.  Shortly afterwards, the applicant’s husband fled to escape from his creditor, leaving the applicant behind with their children.  In April 2015, Lien came again and raped the applicant.  He threatened to kill her if she failed to repay the loan by the next time he came.  Alternatively, he could postpone the payment deadline if the applicant agreed to continue having sexual relationship with him.

7.  After the rape incident, the applicant relocated to her mother’s home with her children.  She was informed by her neighbours that Lien was seeking for her whereabouts at her hometown.  The applicant’s mother was concerned about her safety and suggested her to leave the country.  The applicant then made arrangements with an intermediary to leave Vietnam for Mainland China.  Eventually she sneaked into Hong Kong on 19 July 2015.  While the applicant was in Hong Kong, she met her husband on a street in Shum Shui Po in December 2015.  She then realised that her husband had also fled to Hong Kong in order to escape from his creditor.

8.  The applicant maintained contact with her mother after arriving in Hong Kong.  She was informed that Lien and his underlings went to her mother’s home to look for her at the end of 2015 and at the beginning of 2016.  When the applicant last contacted her mother in December 2016, she told her that she should move on without mentioning anything about Lien.

9.  The applicant did not report the matter to the police because she felt ashamed and that the evidence concerning the rape incident should no longer exist after all these years.  She also believed that the police were corrupt and she had no money to bribe them.  The applicant considered internal relocation within Vietnam not viable as well because she could easily be found by Lien given his triad network within the country.  Furthermore, she did not have the financial means for relocation.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 23 January 2017 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) there was no evidence to indicate that Lien and his underlings had continuous intention to harm or kill her, so that she did not face a real and imminent risk[12]; (ii) state protection will be available to her upon her return [13]-[18]; (iii) internal relocation is viable [19]-[23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[35] or Torture risk [36]-[38].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 13 December 2018, the Board conducted a hearing.

14.  Having considered the applicant’s evidence, the Board was of the view that Lien had no real intention to harm or kill her, otherwise more active steps would have been taken.  The Board further considered that the incident of rape did not have any lasting effect on her or her husband [52].  The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [28]-[31], [43]-[49], BOR 2 and BOR 3 risk [32]-[35], [50]-[56] or Persecution risk [36]-[39], [57]-[59].  Furthermore, state protection and internal relocation were also available to the applicant [48], [52]-[53], [60]-[65].  The applicant admitted that if she was refouled to Vietnam, she would have to get a job and repay the loan slowly and this was the real reason for her resistance to be refouled [54].

15.  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

16.  The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In the affirmation attached with her submissions in support of her application, the applicant repeated her story why she came to Hong Kong and said that she was unable to repay her loan.  If she returns to her country, she will be killed by the creditor.

DISCUSSION

18.  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).

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

20.  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.”

21.  The Board has given the reasons above for its conclusion that the applicant will not be subjected to any of the applicable risks if she returns to Vietnam.  At paragraph 54 of the Board’s Decision, the Board said:

“54. … … She was basically unable to show any factual basis for her alleged fear for her life or any ill-treatment to the required degree.”

22.  The applicant has raised no valid ground to challenge the Board’s Decision.  There is no reasonable basis for this Court to interfere with the Board’s finding of the facts.

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

CONCLUSION

24.  I refuse to grant leave to 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