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

HCAL 2128/2019

[2024] HKCFI 3251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2128 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 19 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request a 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, the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 45, is a Vietnamese. She was arrested by police for illegally remaining in Hong Kong. She admitted that she entered into Hong Kong illegally on 2 February 2017 from Shenzhen, China. By written representation dated 23 February 2017, she lodged her non-refoulement claim for the reason that, upon refoulement, she will be harmed or killed by her creditor named Phong because she was unable to repay her loan.

5.  According to the applicant, she borrowed a loan of 600 million Vietnam Dongs from her creditor for her Lottery Business. She was unable to pay the interest or the loan. The creditor sent his subordinates to her to demand payment of the interest the loan. They came 3 times. The first time, they demanded payment of money and she asked for extension of time. They allowed her 1 month and left. In their second visit, they threatened her that if she was unable to repay, she might have to sell sex or doing other business for the creditor. She refused. For the third time, they came again, and upon her being unable to repay the money, they hit her legs with wood sticks causing injuries to her leg. She considered that it would not be safe for her to stay in Vietnam. She left Vietnam for China on 29 January 2017. She entered into Hong Kong by hiding herself underneath a truck for Hong Kong on 2 February 2017. She believed that state protection would not be available to her and internal relocation would not be possible as the creditor had a wide network in Vietnam.

6.  Details of the story of the applicant can be found in paragraph 6 of the Director’s Decision dated 16 October 2017 (“the Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment indicated future risk of being harmed or killed unlikely to materialize [14]-[15]; (ii) state protection would be available [16] and (iii) internal relocation would be viable [17]-[23].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 20 June 2019, the Board conducted an oral hearing. The Board had made enquiries with the applicant in the hearing.

10.  Having considered the evidence, the Board found:

“16. I am of the view that the credibility of her evidence regarding the Lottery Business and the Loan is undermined by the above mentioned inconsistencies and implausibility. …

22. With the above inconsistencies and implausibility in the Appellant’s evidence, I find that she has failed to establish the primary facts of her case. I am unable, with the evidence before me, to find that the feared risk would materialize upon her being returned to Vietnam as the Appellant has said.”

11.  The Board further found that state protection would be available to her [50] and internal relocation would be viable [51]-[56].

12.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

13.  The applicant has filed Form 86 dated 25 July 2019 for leave to apply for judicial review of the Board’s Decision.

14.  The applicant has attached a copy of the Board’s Decision to her affirmation, but she has not raised any specific reason to challenge the Board’s Decision.

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 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).

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.  For the reasons given, the Board rejected the applicant’s evidence in support of her claim. The Board further found that state protection is available to her and internal relocation is viable if she returns to Vietnam.

19.  There is no valid reason that this Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

21.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.