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

HCAL 233/2019

[2023] HKCFI 74

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 233 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 19 December 2018 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”), the Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Vietnam.  She last entered Hong Kong on 15 November 2014 as a visitor and was permitted to stay until 22 November 2014.  She did not depart and had overstayed since 23 November 2014. On 25 November 2014, she surrendered to the Immigration Department and lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her mother’s creditor, Mr. Long and be oppressed by the local authorities due to her religious belief in Christianity.

5.  According to the applicant, she was baptized on 12 September 2006 as a Christian and had regularly participated in the gatherings.  On a Sunday in February 2007, while she was gathering with the other participants, the local police arrested them for reason that they were not allowed to spread this religion to others.  The applicant was detained for two days and released after paying a fine.  From February 2007 to November 2014, the local police had been monitoring the applicant.  she was arrested for around ten times and, during the detentions, she would be assaulted by the police and sustained bruises.  In addition, her mother took out a loan with Long in 2009.  However, her father, brother and mother all passed away.  In the end of 2012, Long and his people came to chase the applicant for repayments.  She was assaulted on three occasions.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of her claim are set out at paragraph 8 of the Notice of Decision dated 9 November 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as her claimed fear of harm was groundless.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from Long and the local authorities indicated an unlikelihood of future risk of harm [15]-[18]; (ii) state protection would be available to her [19]-[25]; and (iii) internal relocation was also a viable option [26]-[32].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 19 November 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [5].

9.  The Board expressed concerns over several aspects of the applicant’s claim.  In particular, the Board noted that the applicant provided inconsistent account as to the time of her mother’s passing [58].  She also provided inconsistent and vague accounts as to the details of her mother’s payments of the loan [59].  Meanwhile, the Board found it implausible that Long waited for a few months after her mother’s death to chase for the repayments [60].  Also, she was uncertain about the details of the alleged loan taken out from a bank to repay Long [61].  Further, the Board found that her accounts on the subsequent events after her mother’s death were inconsistent [62].  Insofar as the assault incidents were concerned, the Board found that the applicant gave conflicting evidence [63]-[65].  She also gave contradictory accounts as to whether she reported the incidents to the police [68].

10.  The Board also considered her travel records and found that her travel and subsequent returns to Vietnam were inconsistent with her claimed fear of harm [69]-[71].  In light of these inconsistencies, the Board refused to accept her claimed fear of harm from Long [73].

11.  As to her claimed fear of harm originated from her religion, the Board accepted that she was a Christian.  Yet, the Board cast doubts on the alleged problems she encountered as a Christian due to her vague and inconsistent evidence [76]-[82].  Besides, the Board was of the view that the country of origin information did not support the applicant’s assertion that she was targeted because of her Christianity [83]-[86].

12.  For the above reasons, the Board rejected her claim and dismissed her appeal.

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

13.  The applicant has filed Form 86 dated 24 January 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

15.  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).

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

17.  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.”

18.  There is no valid ground to challenge the Board’s Decision.

19.  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.

20.  The applicant 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