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HCAL 1316/2018
[2021] HKCFI 291
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1316 OF 2018
BETWEEN
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Nguyen Thi Thu Huyen |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.
2. The applicant, born in 1982, is a national of Vietnam. On 26 February 2015, she surrendered herself to the Immigration Department claiming that she had entered Hong Kong unlawfully via Mainland China. She then lodged a non-refoulement claim and was subsequently released on recognizance.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [14] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her creditors. She claimed that in mid-2012, she borrowed 400 million Vietnamese Dong to start her eatery business from a money lender, Troung, who has a triad background. Her business suffered heavy loss and had to close by the end of 2013. In early 2014 when she failed to pay even the interest, Troung threatened that he would kill her and her husband if the loan was not repaid in full. Her husband disappeared in February or March 2014 and she believed that her husband fled to avoid the debt. Two months later, Troung came to her house with 3-4 followers. They scolded her and damaged her properties in her house. One more month later, Troung and his followers came again and slapped her in the face. In June or July 2014, Troung and his followers came again and hit her badly with wooden pole. In September 2014, Troung forced her to sign papers to transfer her house to him. The value of her house was not able to cover the accrued interest. After she moved to live in her mother’s house, Troung still went to her mother’s place to look for her and threatened her to repay the outstanding loan.
4. On the other hand, she also borrowed 120 million Dong from a female friend Lan when she knew her difficulties. In early or mid-2014, she also borrowed from a male friend Trung. In mid-2014, a woman called Tuyet came to her house and said that her husband had borrowed around 700-800 million Dong from her. Tuyet later also came with male followers to her mother’s house in September 2014 to find her husband. They never attacked her but gave her pressure. In December 2014, in fear of her safety, she left her home village and resided in Quang Ninh before she left Vietnam for China on 18 January 2015. She stayed in Shenzhen for a month before she sneaked into Hong Kong by boat on 22 February 2015.
The Director’s decision
5. By a notice of decision dated 12 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The Director assessed that there are no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by Troung, Tuyet and their followers upon her return to Vietnam. Moreover, state protection and internal relocation are available to the applicant. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
6. The Board did not conduct an oral hearing.
7. By a decision dated 11 May 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
8. The Board gave reasons for rejecting the applicant’s claimat paragraphs [21-48] of its decision. In essence, the Board noted that the dispute was purely a personal and private matter. It observed that Troung did not assault the applicant after she surrendered her house and moved to her mother’s house, his visits had also become less and less frequent. On the other hand, Tuyet only verbally threatened her but did not assault her physically. The Board found that the applicant failed to provide evidence to substantiate her claim that the Vietnamese authorities would not provide assistance to her. Moreover, she can relocate to other parts of Vietnam without undue hardship and difficulty.
9. Accordingly, the Boarddismissed the applicant’s appeal on all applicable grounds.
Application for leave to apply for judicial review
10. The applicant filed a Form 86 on 9 July 2018 for leave to apply for judicial review of the decision of the Board.
11. In the Form 86, the applicant did not set out any grounds for the relief sought. In her affirmation in support, she repeated her claim that she cannot return to Vietnam as she is not able to repay the debt. She complains that the Board’s decision is unfair to her.
12. No request for oral hearing has been made. The application is therefore considered on the papers.
Discussion
13. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
14. When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court nevertheless examines both decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.
15. The Board did not conduct an oral hearing. I have considered the principles explained by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277. I do not find the course adopted by the Board to be irregular or unfair.
16. In the present case, the Board did not take issue with the applicant’s asserted primary facts. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the viability of internal relocation.
17. As mentioned above assessment of evidence, the risk of harm and availability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.
18. The complaint raised by the applicant in her affirmation contained nothing to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a regurgitation of what she told the Director and the Board. There is no reasonably arguable basis to challenge the Board’s findings.
19. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.
Disposition
20. For the reasons given, there is no prospect of success in the applicant’s intended application. Accordingly, I refuse to grant leave for judicial review.
Dated 11 February 2021
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(Chung Lai Fan, Christine) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 11 February 2021
Nguyen Thi Thu Huyen
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11 February 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7577/17/6/273/V1484
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 886/17 (Formerly RBCZ 10707/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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