NGO THI BICH THUY AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 731/2022

[2024] HKCFI 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 731 of 2022

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 Applicants being present in open court;

1.  Leave to apply for Judicial Review be refused; and

2.  The non-compliance of Order 80 of the RHC in the proceedings is a mere irregularity under without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her son, aged 2.

2.  The applicants applied for leave to apply for judicial review of the Decision dated 29 July 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office relating to the mother’s appeal (“the Board’s 1^st Decision”) and another Decision of the Board dated 22 May 2023 relating to the son’s appeal (“the Board’s 2^nd Decision”).  They are collectively called (“the Board’s Decisions”)

3.  The 1^st applicant applied to the Court to amend Form 86 in respect of her application to include the 2^nd applicant, so that their applications may be dealt with together.  Leave was granted on 20 December 2013.  Their applications have now become their joint application.

4.  The applicants appeared before the Court on 17 April 2024.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the respective Forms 86 are amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

6.  The applicants are Vietnamese.  The 1^st applicant entered Hong Kong illegally from Mainland China on 23 January 2021 and was arrested by the police on 22 February 2021.  On 5 March 2021, the 1^st applicant lodged a non-refoulement claim.  She gave birth to her son on 29 April 2022 in Hong Kong, the 2^nd applicant herein.  On 11 August 2022, the 1^st applicant also made a non-refoulement claim on behalf of the 2^nd applicant.  The 2^nd applicant basically relied on the grounds of the 1^st applicant to support his claim.  The two non-refoulement claims were made on the basis that, if refouled, the 1^st and 2^nd applicants would be harmed or even killed by Nguyen Van Manh, the creditor of the 1^st applicant (“the creditor”), because she failed to repay the loan.

7.  According to the 1^st applicant, she was divorced and had a son born out of wedlock in 2010, i.e. the 2^nd applicant’s elder brother.  Her elder son was living with her ex-husband.  In June 2017, the 1^st applicant borrowed money from the creditor and she started up a clothing shop in July 2017.  By December 2020, due to the negative impact on the economy caused by COVID-19, the 1^st applicant had to cease business and was no longer able to repay the loan.  In January 2021, the creditor together with 3-4 of his underlings attended her home.  She did not open the door to let them in and they used iron rod to hit against the door.  The creditor rejected the 1^st applicant’s request for an extension of time to repay the loan and threatened to disturb her family members.  They then threw three nylon bags filled with faeces onto her rooftop and left.  The 1^st applicant did not report the matter to the police in fear of retaliation from the creditor.  She also considered the police to be corrupt and she had no money to bribe them.

8.  Two days later, she met the creditor while outside her home.  He pulled her hair as well as assaulted her with fists and kicks.  When the 1^st applicant requested for an extension of time to repay the loan, the creditor rejected and threatened to sell her to a brothel.  The creditor then dragged her away from her home.  When her aunt tried to intervene, he struck her left arm with wooden stick once.  The 1^st applicant managed to escape eventually with the intervention from her neighbours.  She sustained bruises on her face and four limbs, but she did not seek medical treatment.  She also did not report the matter to the police for the same reason.   

9.  The 1^st applicant then relocated to her friend’s home.  As she was still worried that she would be found by the creditor sooner or later, she left Vietnam for Mainland China in January 2021 and sneaked into Hong Kong illegally on 23 January 2021. 

10.  The 1^st applicant maintained contact with her family since she arrived in Hong Kong.  Her grandmother told her in January 2021 that the creditor had been to her home 3-4 times demanding loan repayment and threatened to kill the 1^st applicant if she returned to Vietnam.  She also learnt that her grandmother had told the creditor that she is in Hong Kong.  In March/April 2022, the creditor attended her grandmother’s home.  Her grandmother requested the 1^st applicant to sort out the loan problem with the creditor.  As she did not want her grandmother to be disturbed, she called the creditor in May 2022 requesting an extension of time for loan repayment, which however, was rejected.  In June 2022, the creditor called the 1^st applicant demanding loan repayment and told her that he was aware of the birth of the 2^nd applicant.  He threatened to kill both of them when they returned to Vietnam.  Around the same time, the 1^st applicant tried to borrow money from her aunt to repay the loan, but was in vain.

11.  The 1^st applicant was of the view that the police could not offer protection to them because they were corrupt and colluded with triad members.  They also considered relocating to other places within Vietnam not viable because the creditor would utilize his triad network to locate them.

12.  Details of the story of the 1^st and 2^nd applicants can be found in paragraph 6 of the Director’s Decisions dated 22 November 2021 (“the Director’s 1^st Decision”) and 20 October 2022 (“the Director’s 2^nd Decision”).

The Director’s 1^st Decision

13.  The Director considered the 1^st 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”).

14.  By way of the Director’s 1^st Decision, the Director dismissed the 1^st applicant’s claim.  The Director found that: (i) the low intensity of harm from the creditor and his underlings is indicative of a small future risk of harm upon her return to Vietnam [11]; (ii) state protection will be available to her upon her return [12], [14]-[17]; (iii) internal relocation is viable [13], [18]-[19] and (iv) the 1^st applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[31] or Torture risk [32]-[35].

The Director’s 2^nd Decision

15.  The Director considered the 2^nd 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”).

16.  By way of the Director’s 2^nd Decision, the Director dismissed the 2^nd applicant’s claim.  The Director found that: (i) the low intensity of harm suffered by the 1^st applicant and the past behaviour of the creditor is indicative of a small future risk of harm upon the 2^nd applicant’s return to Vietnam [10]; (ii) state protection will be available to him upon his return [11]-[15]; (iii) internal relocation is viable [16]-[17] and (iv) the 2^nd applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [18]-[23], Persecution risk [24]-[28] or Torture risk [29]-[32].

The Board’s 1^st Decision

17.  The 1^st applicant appealed the Director’s 1^st Decision to the Board.  On 30 May 2022, the Board conducted an oral hearing.   

18.  Having considered the 1^st applicant’s evidence, the Board found her claim lacked credibility, reliability and plausibility, particularly in relation to (i) the startup and operation of cloth shop business; (ii) the borrowing of the loan and (iii) the various threats by the creditor.  In any event, even the 1^st applicant herself admitted that the claimed threats and assaults by the creditor during the debt collection incidents were merely to pressurise her for repayment rather than to kill her [42]-[59].

19.  Based on such findings, the Board concluded that the 1^st applicant’s case failed to meet any of the requirement under Torture risk [16]-[21], [60]-[66], BOR 2 and BOR 3 risk [22]-[29], [68]-[73] or Persecution risk [30]-[36], [74]-[76], [81].  Furthermore, internal relocation was also available to the applicant [67], [77]-[80].

20.  The Board therefore dismissed the 1^st applicant’s appeal and confirmed the Director’s 1^st decision (“the Board’s 1^st Decision”).

The Board’s 2^nd Decision

21.  The 2^nd applicant appealed the Director’s 2^nd Decision to the Board.  On 17 March 2023, the Board conducted an oral hearing.   

22.  Although the 2^nd applicant relied mainly on the grounds put forward by the 1^st applicant, which had already been rejected in the Board’s 1^st Decision, the Board took into account the personal circumstances of the 2^nd applicant when assessing his claim given that he is a minor.  The Board was of the view that the 2^nd applicant did not face a real risk of harm because it was not convinced that the creditor knew about the pregnancy of the 1^st applicant and the birth of the 2^nd applicant.  Accordingly, the belief that the 2^nd applicant would be harmed by the creditor and his underlings was merely a speculation [48]-[71].

23.  Based on such findings, the Board concluded that the 2^nd applicant’s case failed to meet any of the requirement under Torture risk [19]-[22], [79]-[84], BOR 2 and BOR 3 risk [23]-[32], [85]-[89] or Persecution risk [33]-[37], [90]-[95].  Furthermore, state protection and internal relocation were also available to him [38]-[43], [72]-[78], [96]-[102].

24.  The Board therefore dismissed the 2^nd applicant’s appeal and confirmed the Director’s 2^nd decision.

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

25.  On behalf of herself and her son, the 1^st applicant filed an affirmation in support of their applications.  In the supporting affirmation, the 1^st applicant said that if they return to Vietnam, they will be harmed or killed by the creditors and gangsters.  They cannot relocate themselves to avoid those people because they have many difficulties and obstacles there, and they cannot adapt to the new place and she cannot find a job there.

DISCUSSION

26.  The role of this Court is supervisory, meaning that it ensures that the Boards complied with the public law requirements in coming to the Boards’ Decisions on the applicants’ appeal.  The Court will not usurp the fact-finding power vested in the Director and the Boards.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

27.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the 1^st applicant said that she did not think the Boards were wrong.  But she does not want to return to Vietnam because she has no money to repay her debt.  I asked the 1^st applicant whether there was any child-specific issues that she wanted the Court to take into consideration.  She said that the creditor may hold her son against her and the police will be unable to help her.  Her husband is a Vietnamese.  He has also applied for non-refoulement claim.  He has also applied for judicial review of the Board’s Decision.  But there is no response so far.

28.  The 1^st applicant’s claim and the 2^nd applicant’s claim were separately assessed.  It is apparent that the 2^nd applicant was not legally represented before the Board.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

29.  It is clear that the Board had considered the 2^nd applicant’s case in detail.  It came to the conclusion that the 2^nd applicant’s claim cannot sustain.  I have also made enquiry with the 1^st applicant on the 2^nd applicant’s issues.  Those issues raised by the 1^st applicant are not valid to challenge the Board’s Decision in respect of the 2^nd applicant.

30.  The applicants are unable to raise any valid reason to challenge the respective Board’s Decision.  Therefore, they fail to show that their intended application for leave for judicial review of the Boards’ Decisions has any realistic prospect of success.

CONCLUSION

31.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions.  Accordingly, I dismiss their joint application.

32.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

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