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

HCAL 846/2023

[2024] HKCFI 2635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 846 of 2023

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 Thuy Linh (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 22 May 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 25 January 2022 (“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 English containing detail grounds also in English without interpretation but filed her English Supporting Affirmation (“Supporting Affirmation”) with the assistance of an interpreter.  On 20 June 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”).  On the same day, the Applicant also lodged an English statement without interpretation service.  I am satisfied that the Applicant has the ability to understand ordinary English but may require interpretation for 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 3 August 1994 in Huyen Kinh Mon, Hai Duong, Vietnam.

4.  She received about 12 years of education and had about 7 years work experience before she came to Hong Kong in 2021. 

5.  From 2013 to 2020, she operated her own business of selling agricultural products.

The Claim

6.  The Applicant claimed that she had borrowed VND 600 million (“Loan”) from a creditor (“Creditor”) in March 2019 to finance the expansion of her husband’s grocery business.  She had to pay a monthly interest of VND 30 million with the principal to be repaid by the end of 2020.

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

8.  She could not afford to pay the monthly interest after March 2020 due to outbreak of Covid-19 pandemic in early 2020 which adversely affected her husband’s business.

9.  In early 2021, the Creditor came to the Applicant’s home with 5 followers to coerce for repayment.  They looked fierce.  Each of them carried an iron rod.  When the Applicant was unable to pay, they attacked her with punches, kicks and iron rods.  They gave her 1 month to raise money and threatened to kill her next time if she still failed to repay.  She did not attend medical treatment after the attack.

10.  They came again in May 2021 when the Applicant was not at home.  She was told by her neighbour about this.  The Applicant was very scared and decided to flee her hometown.

11.  She went to Mong Cai and stayed there for 2 days.  On 6 June 2021 she sneaked into China.  She stayed in China for 1 month before sneaked into Hong Kong on 10 July 2021.

12.  She lost contact with her husband since May 2021.  Their son was taken care by the Applicant’s mother after she left Vietnam.

13.  When she was in Hong Kong, the Applicant was told by her mother that the Creditor still came to her home and her mother’s home to look for the Applicant.

14.  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

15.  The Applicant entered Hong Kong illegally on 10 July 2021 from China and was arrested by Hong Kong police on 3 September 2021.  She was referred to the Immigration Department on 4 September 2021.

16.  By a written representation of 9 September 2021, the Applicant lodged the Claim. 

17.  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.

18.  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.

19.  On 1 June 2023, the Applicant filed the Form 86 seeking leave for judicial review of the Board’s Decision.  The Applicant named both the Board and the Director as proposed respondents in the Form 86.

20.  The Applicant filed the Supporting Affirmation also on 1 June 2023.

21.  On 20 June 2024, the Applicant filed the Withdrawal Application applying to withdraw and cancel her judicial review application because she wanted to return to her country.  She stated that it was safe for her to return to Vietnam.

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 had not inflicted serious 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 his followers had the opportunities to seriously harm or kill the Applicant when they visited her home with weapons 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.

24.  The Applicant did not claim protection when she was in China.  She did not claim protection immediately when she arrived in Hong Kong in July 2021. She lodged the Claim only after she was arrested by the police.  Such conduct was inconsistent with a person in genuine fear of being harmed or killed.

25.  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. 

26.  Although the Applicant asserted that the Vietnamese police would not give her any protection, this was unsupported by any evidence.  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 her to claim that the police would acquiesce to the Creditor’s illegal actions or fail to protect the Applicant.

27.  The Director further found that internal relocation would be viable.  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 Da Nang 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. 

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

The Board’s Decision

29.  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 Applicant was not a witness of truth. 

30.  The Applicant did not produce any independent evidence in support of her case.  Nothing was produced by the Applicant in support of her versions concerning the grocery business, the Loan, or the assault of injury caused by the Creditor.

31.  In §§43-61 of the Board’s Decision, the Board set out its analysis of the Applicant’s evidence.  The Board found that the evidence of the Applicant was incredible and unreliable.  The Board rejected the Applicant’s evidence.

32.  The Board went on in §§63-95 of the Board’s Decision to consider the various grounds under the USM upon which the Claim was based and concluded that the Applicant’s claims under all the grounds failed.

33.  On basis of the COI, the Board found that state protection was available and internal relocation was viable.  Even if the Applicant’s version was accepted to be credible, she was still unable to establish the Claim.

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 annexed a statement stating the grounds for her intended judicial review.

39.  The Applicant put forward the following grounds:

(1)  the Director and the Board reached their decisions wrongly and their decisions were not reasonable and fair;

(2)  the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence;

(3)  the Board acted unreasonably and was procedurally unfair by placing too much reliance on COI but failing to take into account the Applicant’s personal background and experience;

(4)  the Director failed to consider or give enough weight to COI in support of the Applicant’s case;

(5)  the Board was procedurally improper and/or unfair when assessing the Applicant’s evidence and unreasonably requiring the Applicant to respond to questions that she was not in a position to offer any response;

(6)  the Director was unfair and failed to attain the high standards of fairness in not accepting the Applicant’s assertion on corruption and incompetency of the administration in Vietnam; and

(7)  the Board ought to have allowed the Appeal but instead dismissed the same.  The Board’s Decision was irrational.

40.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents. 

41.  The aforesaid grounds advanced by the Applicant in the Form 86 were without particulars.  They were only bare assertions.

42.  After considering all the evidence provided by the Applicant, the Director found insufficient evidence to show state acquiescence in the Applicant’s alleged ill-treatment or feared harms.  The Board also found in §66 of the Board’s Decision that: “Nothing in this case could show that any acts or acquiescence of the state or public body would be involved in oppressing [the Applicant] when she returns to her country.”  The Applicant provided no particulars nor supporting evidence to substantiate her complaint of the Board failing to adequately consider state acquiescence in her feared risk.  Relying on this ground to seek judicial review has no merits.

43.  As pointed out in the Nupur Mst case (supra), assessment of COI materials and state protection were primarily within the province of the Board and the Director.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.  The fact that the Applicant did not agree to the findings of the Board and/or the Director per se is no ground for challenging such findings. 

44.  Both the Director and the Board had taken into account the personal background and experience of the Applicant and carefully considered all relevant COI before reaching their respective decisions of refusing the Claim or dismissing the Appeal.  I see no merits in this proposed ground advanced by the Applicant.   

45.  The Board found that the Applicant’s assertion lacked credence.  After considering the COI and all circumstances, the Board was of the view that state protection and internal relocation would be available to the Applicant in Vietnam.  The Applicant’s proposed challenge to this finding of facts by the Director and/or the Board is not reasonably arguable.

46.  The Applicant did not specify what inappropriate questions had been put to her by the Board.  The Board had to put to the Applicant questions on all matters relating to the Claim causing concerns to the Board.  If the Applicant was not in a position to respond to any of the questions, the Applicant could explain to the Board why she was unable to respond.  No unfairness would be caused.  There were no records that the Applicant had raised such issue at the hearing before the Board.  This ground is again not reasonably arguable.

47.  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. 

48.  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. 

49.  The Board found the Applicant’s claims not credible for reasons set out in §§42-61 of the Board’s Decision.  The Board did not accept the Applicant’s version and found no basis to support the Claim.  The Board also found that state protection and internal relocation would be available to the Applicant, if necessary.

50.  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

51.  The Applicant subsequently filed the Withdrawal Application on 20 June 2024 stating that she would like to return to her country and it was safe for her to do so.  She also confirmed that she applied to cancel her case out of her own free will.

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

53.  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

54.  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