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

HCAL 1426/2019

[2024] HKCFI 911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1426 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 Decision dated 24 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), 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 51, is a Vietnamese. She entered Hong Kong illegally on 17 October 2015 and lodged a non-refoulement claim on 20 October 2015.

5.  According to the applicant, she borrowed money from her friend Sau in 2001 as she was in need of money for medical treatment and for business purpose. According to Sau, part of the loan was borrowed from other creditors unknown to the applicant. During the period between 2001 and 2012, whenever the applicant was unable to repay the interest instalments of the loan, Sau would pay for her using her own money. Subsequently, Sau’s husband discovered that Sau had lent money to the applicant. He was unhappy about the loan and frequently quarreled with Sau on such matter. There was even an occasion that Sau’s husband injured the applicant with a knife when she intervened in a quarrel between Sau and him. Eventually, on 3 September 2014, in order to earn money to repay the debt to Sau, the applicant left Vietnam and started working in a factory in Guangzhou, China. On 17 October 2015, she entered Hong Kong illegally by hiding under a truck.

6.  The applicant alleged that Sau continued repaying outstanding interest instalments for her after she left Vietnam. In or around May 2016, during a telephone conversation with Sau, Sau’s husband grabbed the phone and verbally threatened to kill the applicant. In February 2017, the applicant was told by her elder sister that Sau’s husband together with several fellows went to her place, threatening to kidnap the applicant’s daughter if she failed to repay the loan.

7.  The applicant was of the view that she could not relocate to other places within Vietnam as Sau’s husband could still locate her. She was also of the view that she could not seek protection from the police as it was merely a private debt matter with her friend Sau.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 5 April 2017 (“the Director’s Decision”).

The Director’s Decision

9.  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”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) her good relationship with Sau together with the low intensity of past ill-treatment from Sau’s husband are indicative of low future risk of harm upon her return to Vietnam [13]-[14]; (ii) state protection will be available to her upon her return [16]-[22]; (iii) internal relocation is viable [15], [23]-[28] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [29]-[35], Persecution risk [36]-[41] and Torture risk [42]-[45].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 21 February 2019, the Board conducted an oral hearing.

12.  Having considered the applicant’s evidence, the Board found her not credible and rejected her account as untruthful, particularly in relation to (i) the existence of the loan, (ii) the assault by Sau’s husband and (iii) the power and network of Sau’s husband [23], [27]-[50]. In any event, the applicant’s case failed to meet any of the requirements under Persecution risk [51]-[60], [72]-[73], Torture risk [74]-[83] or BOR 2 and BOR 3 risk [84]-[92]. Furthermore, state protection and internal relocation were also available to the applicant [61]-[71], [93]-[102].

13.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

14.  The applicant has filed Form 86 dated 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In her affirmation in support of her application, the applicant said she has a genuine risk that she will be killed by her creditor and his men if she returns to Vietnam since she is insolvent.

DISCUSSION

16.  “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).

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

18.  “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.”

19.  For the reasons given by the Board, the Board rejected the applicant’s evidence and found that state protection and internal allocation are available to her. The applicant has raised no valid reason to challenge the Board’s Decision. The Court sees no reason to interfere with the Board’s Decision.

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

CONCLUSION

21.  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