HOANG THI PHUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 714/2020

[2024] HKCFI 2760

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 714 of 2020

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 Hoang Thi Phuong (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 25 March 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 16 July 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  The DOI Decision was in Chinese while the Board’s Decision was in English.  The Applicant completed the Form 86 herein (“Form 86”) in Chinese without interpretation but filed her Chinese Supporting Affirmation (“Supporting Affirmation”) with the assistance of an interpreter. On 4 September 2024, the Applicant filed another affirmation in English also with the assistance of an interpreter applying to withdraw this intended judicial review application (“Withdrawal Application”).  It seems that the Applicant will require interpretation for both Chinese and English documents. As such, I decide to issue this decision in English.

Background of the Applicant

3.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Vietnamese.  She was born on 30 June 1954 in Guang Ning County in Vietnam.

4.  She received about 4 years of education.  She was married with 1 daughter and 1 son.  She had been a Vietnamese refugee in Hong Kong and was repatriated to Vietnam in 1997 together with her husband and children.  Her husband left her in 1998.  Her son went to work in Ho Chi Minh City in 2000 and she lost contact with him since then.  Her daughter was married and moved to Hong Kong in 2009.

5.  She made a living in Vietnam by selling vegetables before she engaged in coal products resale business.

The Claim

6.  The Applicant claimed that she had borrowed VND 800 million (“Loan”) from a creditor (“Creditor”) in October 2010 to finance her coal products resale business.  She had to pay a monthly interest of 3% to 4% and to repay all interest and the principal within 5 years.

7.  The Creditor was a loan shark.

8.  She handed over all the Loan to her supplier (“NVC”) for supplying coal products to her for resale.  After about 6 months, the place where NVC produced coal products collapsed and NVC disappeared.  The supplies of coal products to the Applicant ceased and the Applicant ran into financial difficulties.  She was unable to pay interest to the Creditor after March 2011,

9.  In May 2011, the Creditor came to the Applicant’s home with 2 to 3 followers to coerce for repayment.  The Creditor threatened to beat her and demolish her house if she could not repay the Loan. They came to her house 3 to 4 times.  They banged on her furniture and threatened to beat her but they did not actually beat her.  Each time, they would stayed for 10 to 15 minutes.  The Applicant begged them for more time and they agreed to give her a grace period of 3 months.

10.  To avoid the Creditor, the Applicant went to stay with her relatives at Mong Cai.  She resumed selling of vegetables in Mong Cai and did not encounter the Creditor again.  Although nothing eventful happened to her in Mong Cai, the Applicant decided to come to Hong Kong because she still feared that the Creditor would eventually find her and also because she only earned a meagre income from selling vegetables.

11.  She left Vietnam for China and from China sneaked into Hong Kong in August 2013.

12.  The Applicant claimed that she would be harmed or killed by the Creditor and his followers if she were to return to Vietnam.

Procedural history

13.  The Applicant was arrested on 7 May 2014 for using forged identity card, staying in Hong Kong without permission and engaging in illegal employment.

14.  By a written signification of 22 June 2014, the Applicant lodged the Claim. 

15.  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;

(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 Ordinance, Cap. 383 (“BOR”);

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

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

17.  On 21 April 2020, the Applicant filed the Form 86 seeking leave for judicial review of the Board’s Decision.  The Applicant named the Board as proposed respondent and interested party in the Form 86.

18.  The Applicant filed the Supporting Affirmation also on 21 April 2020.

19.  On 4 September 2024, the Applicant filed the Withdrawal Application applying to withdraw her judicial review application.

The DOI Decision

20.  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.

21.  The Director noted that the Creditor had not inflicted any injuries to the Applicant but allowed time for the Applicant to repay the Loan.  The ill-treatment inflicted by the Creditor on the Applicant did not attain a minimum level of severity.  The Creditor and her followers had the opportunities to seriously harm or kill the Applicant but they refrained from doing so.  This showed that the Creditor did not really intend to kill or seriously harm the Applicant.  They only wanted to press the Applicant to repay the Loan.

22.  On the issue of state protection, the Director after considering the relevant country of origin information (“COI”) found that there might be some inefficiency or corruption problems within the Vietnamese police but there were objective indications in COI showing that the Vietnamese government took steps to improve the police force.  The Director found that the Vietnamese government was able and willing to protect the rights of its citizens. 

23.  The Applicant had never reported the Creditor to the Vietnamese police.  COI showed that the Vietnamese government would take actions against corrupt police.  The Applicant’s dispute with the Creditor originated from the Loan.  It had nothing to do with the police or the government authorities.  There was no basis for the Applicant to claim that the police would fail to protect her.

24.  The Director further found that internal relocation would be viable.  The Applicant had stayed in Mong Cai without encountering the Creditor there.  The Director was of the view that the Creditor did not have the power or resources to track down the Applicant throughout the whole country.  If the Applicant moved to Hanoi or Ho Chi Minh City, the Creditor would have great difficulty in locating her.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas 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 including her claim form, the record of her interview with the immigration officer and her oral evidence given at the hearing before the Board, formed the view that the evidence presented by the Applicant was troubling in many respects.  The Board set out its concerns in §53 of the Board’s Decision.

27.  The Applicant told the Board that she was beaten by the Creditor’s followers in May 2011 at her home.  The Board was of the view that even if her such testimony was true, the Applicant had not suffered any serious harm or injuries at their hands.

28.  In §§67-74 of the Board’s Decision, the Board considered the various grounds under the USM upon which the Claim was based and concluded that the Applicant’s claims under all the grounds failed.

29.  In her notice of appeal, the Applicant claimed that she feared harm and persecution as a result of the anti-Chinese sentiments in Vietnam.  After considering the relevant COI and the Applicant’s evidence in §§57-58 of the Board’s Decision, the Board concluded that the Applicant’s alleged fear was not well-founded.

30.  On basis of the COI, the Board found that internal relocation was viable to the Applicant.  She had succeeded in making a living in Mong Cai before she left Vietnam.  If she wished to get far away from the Creditor, she could choose to go the Ho Chi Minh City.

31.  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

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

33.  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”.

34.  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

35.  In the Form 86, the Applicant did not state any grounds for her intended judicial review.

36.  In the Supporting Affirmation, the Applicant only reiterated the reasons for her to claim protection in Hong Kong and exhibited a copy of the Board’s Decision without other supporting documents. 

37.  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. 

38.  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 very high standards of fairness. 

39.  The Board found the Applicant’s evidence troubling for reasons set out in §53 of the Board’s Decision.  The Board did not accept that the Applicant faced serious risk of harm from the Creditor, her followers or any other person.  There was no evidence that state or government authorities were involved in the Applicant’s feared harms.  The Board also found that state protection and internal relocation would be available to the Applicant, if necessary.

40.  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 Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

41.  The Applicant subsequently filed the Withdrawal Application on 4 September 2024 stating that she would like to withdraw her application.

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

43.  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

44.  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.

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