BUI THI DIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1435/2024

[2024] HKCFI 3521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1435 of 2024

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.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Bui Thi Dien (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 25 March 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 21 November 2023 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  Both the DOI Decision and the Board’s Decision were in Chinese but the Applicant completed the Form 86 herein (“Form 86”) in English without interpretation.  She also filed her English Supporting Affirmation (“Supporting Affirmation”) without assistance of interpreter.  By an English letter dated 3 October 2024, the Applicant seeks to close her case for this intended judicial review (“Withdrawal Application”).  The Applicant has the ability to understand and express herself in ordinary English.  As such, I decided to issue this judgment in English.

Background of the Applicant

3.  The Applicant is a Vietnamese.  She was born on 22 September 1976 in Tu Son, Kien Thuy, Vietnam.

4.  She received about 7 years of education.  She operated her marine products farm (“Farm”) from 2019 to 2021 and worked as casual worker for various employers from 2022 to 2023 before she came to Hong Kong in August 2023. 

The Claim

5.  The Applicant claimed that she borrowed VND 5 billion (“Loan”) from a creditor (“Creditor”) in early 2019 to finance the operation of the Farm.  She had to pay a monthly interest of VND 80 million with the principal to be repaid in 2 years.

6.  The Creditor was a loan shark with triad society background.

7.  A typhoon in 2021 killed all the prawns raised in the Farm and the Applicant had to close the Farm in late 2021.  She could not afford to pay the monthly interest since early 2022.

8.  One month after she stopped paying interest, the Creditor came to her home with 3 followers to chase the Applicant for payment.  The Applicant asked the Creditor to allow 3 months for her to arrange funds which the Creditor agreed.  No harm was caused to her on that occasion.

9.  Three months later, the Creditor came to the Applicant’s home with his followers again for payment.  The Applicant was still unable to pay and asked for another 5 months’ time for her to arrange funds.  The Creditor agreed again but threatened the Applicant that if she still failed to pay by then, the Creditor would kill her.  Again no harm was caused to the Applicant.

10.  Knowing that she was unable to repay the Creditor, the Applicant moved to Le Chan, Hai Phong which was about 25 km away from her home to avoid the Creditor.

11.  She was unable to find employment in Le Chan, Hai Phong.  After 6 to 7 months, she moved to Kien Thuy, Hai Phong which was about 15 km from her home.  She worked as a casual worker there.

12.  The Applicant did not encountered any problems when she was living in Le Chan or Kien Thuy.  In May 2023, She decided to leave Vietnam in fear of the Creditor might eventually find her.

13.  She went to China in May 2023 but returned to Vietnam after a few days as she could not understand Chinese.  She left Vietnam again in August 2023 to Hong Kong via China.

14.  The Applicant claimed that she would be harmed or killed by the Creditor and his followers if she were to return to Vietnam because she was unable to repay the Loan.

Procedural history

15.  The Applicant was arrested by the Hong Kong police on 24 August 2023 for illegal stay in Hong Kong.  By a written representation of 29 August 2023, the Applicant lodged the Claim. 

16.  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 (“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 Ordinance, Cap. 383 (“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”).

17.  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.

18.  On 26 August 2024, 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 the Director as interested party in the Form 86.

19.  The Applicant filed the Supporting Affirmation also on 26 August 2024.  When the Applicant filed the Form 86, she confirmed in writing to the court that she did not request an oral hearing for her application. 

20.  On 7 October 2024, the court received the Withdrawal Application.  The Applicant asked the court to close her case because she wanted to go back to Vietnam as soon as possible.  She stated that she was safe to go back to her country.

21.  In such case, I decided to deal with the Applicant’s application for leave for judicial review and the Withdrawal Application by way of paper disposal.

The DOI Decision

22.  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.

23.  The Director noted that the Creditor did not actually assault or injure the Applicant on all occasions. The Creditor and his followers had the opportunities to seriously harm or kill the Applicant when they visited her home but did not do so.  Every time, the Creditor would allow further time for the Applicant to make payment.  This showed that the Creditor did not really intend to kill or seriously harm the Applicant.  He only wanted to press the Applicant to repay the Loan.

24.  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 were returned to Vietnam.

25.  Although the Applicant asserted that the Vietnamese police would not give her any protection, this was unsupported by any evidence.  COI showed that the Vietnamese government would take actions against corrupt police, triad society and loan sharks.  Her 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 the Applicant to claim that the police would fail to protect her.

26.  The Director further found that internal relocation would be viable.  If the Applicant moved to Hanoi or Da Nang 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. 

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

The Board’s Decision

28.  In §§72-74 of the Board’s Decision, the Board expressed its concerns on the credibility of the Applicant but proceeded to assess her claims based on the events claimed by the Applicant.

29.  The Board was of the view that the harm or ill-treatment alleged by the Applicant, whether physically or mentally, did not attain a minimum level of severity and the Creditor did not intend to kill or seriously harm the Applicant.  Furthermore, the dispute between the Applicant and the Creditor arouse out of the Loan.  It was private and personal between the Applicant and the Creditor.  There was no evidence to suggest that the alleged threats from the Creditor was made by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as required under section 37U of the Ordinance. 

30.  On basis of the COI, the Board found that the Applicant would be able to access to state protection in respect of harm threatened by the Creditor or his followers, if there was any.

31.  The Board did not consider that the Applicant faced risk of life danger contemplated under BOR 2 or there was a real or genuine risk of torture or ill-treatment contemplated under BOR 3 by anyone if she were sent back to Vietnam.

32.  The Applicant’s claim was not linked to race, religion, nationality, membership of a particular social group, or political opinion.  The Board found that the Applicant did not have a well-founded fear of persecution in Vietnam.

33.  The Board agreed with the Director that internal relocation to Hanoi and Da Nang City would be reasonable and viable to the Applicant.

34.  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

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

36.  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”.

37.  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

38.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

39.  In the Supporting Affirmation, the Applicant only stated that: “Im [sic] applicant and wish to file for judicial review for my torture claim appeal board and ask for help for stay here in Hong Kong because my life is in danger in my country/Vietnam.”  She then exhibited a copy of the Board’s Decision to the Supporting Affirmation without other supporting documents.

40.  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. 

41.  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. 

42.  Although the Board had concerns on the credibility of the Applicant, the Board proceeded to assess the Applicant’s claims based on the events claimed by her but still found that she failed to establish that she would face any of the proscribed risks if she were returned to Vietnam.  The Board also found that reasonable state protection was available and internal relocation was viable to the Applicant.  I note that there were typos in §72 of the Board’s Decision on the Loan amount.  However, I am of the view that the typos did not affect the decision of the Board.

43.  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

44.  The Applicant subsequently submitted the Withdrawal Application by letter dated 3 October 2024 stating that she wanted to close her judicial review case and return to her own country.  She stated that she was safe to go back to Vietnam.

45.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

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

47.  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

48.  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