TRAN THI PHUONG v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 201/2019

[2021] HKCFI 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 201 OF 2019

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and 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 3 July 2014, she lodged a non-refoulement claim to the Immigration Department.  According to record of the Immigration Department, the applicant entered Hong Kong illegally in April 2011 and was removed by the Immigration Department in September of the same year.  She entered Hong Kong again in February 2013 lawfully.  Having been continuously granted extension of stay, she was last permitted to stay until 1 April 2014 and she overstayed since then.  She was arrested on 19 March 2014 and sentenced subsequently to 2 months’ imprisonment for breach of condition of stay.  She was later released on recognizance.  In May 2015, she was arrested again and convicted of offences including taking up unlawful employment and sentenced to 22 months’ imprisonment.

3.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [6] of the decision of the Director dated 7 July 2016 (the Director’s first decision).  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her creditor.  She said that she failed to repay the debt of 600 million Vietnamese Dong she borrowed from her creditor in 2012 for her business in poultry farm.  She failed to repay the loan since November 2012.  She was assaulted and threatened by her creditor that she would be killed if she could not repay the debt.  She reported to the police but they did not follow up the matter.  She later came to know a man from Hong Kong, Ah Sum, and they completed their marriage procedure in Vietnam.  She then left Vietnam on 27 February 2013 for Hong Kong and registered their marriage again on 1 March 2013.

The Director’s Decisions

4.  By notices of decision dated 7 July 2016 and 10 January 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  In his first decision, having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low based on reasons including that the debt issue was a private dispute and the acts of her creditor were only intended to pressurize her to repay.  He also found that state protection is available to the applicant and internal relocation is a viable option for her.

5.  Subsequently the Director invited the applicant to submit additional facts, if any, which she considered relevant to a claim for non-refoulement on the ground of BOR 2 risk. The applicant did not submit any additional facts.  In his second decision, the Director rejected the claim on that ground as well.

6.  The applicant by a notice of appeal dated 21 March 2017 lodged an appeal/ petition to the Board against the Director’s second decision dated 10 January 2017.  It was a late filing and she explained that it was due to her being detained in prison.

The Board’s Decision

7.  Having considered the contents of her Notice of Appeal, the Board did not refuse the late filing and proceeded to consider the appeal without an oral hearing.  The Board dismissed the appeal for the reasons set out at para [5-12] of its decision.  In a nutshell, the Board noted that in her Notice of Appeal the applicant merely repeated her previous claim that she cannot return to Vietnam as it will be very dangerous to her life without providing any additional facts on her BOR 2 claim.  After considering all the additional materials relating to the BOR 2 risk, the Board decided that no hearing was necessary, and the nature and scope of non-refoulement protection afforded by BOR 2 had no relevance to the claim as presented by the applicant that she was unable to keep up with repayment of loan and the creditor threatened to kill her.  The Board remarked that the perpetrator that BOR 2 protects against is the government of nationality of the applicant.  Her problem with her creditor was a private dispute without involvement or acquiescence of the Vietnamese government.  There was no evidence to show that the Vietnamese government was unwilling or unable to afford protection to the applicant.  There was also nothing in the evidence to show that she will be at risk of BOR 2 harm if refouled.  In conclusion, the Board affirmed the “Notice of Further Decision” (the second decision) of the Director.

Application for leave to apply for judicial review

8.  The applicant filed a Form 86 on 22 January 2019 for leave to apply for judicial review of the decisions of the Director dated 7 July 2016 and 10 January 2017, and the decision of the Board dated 17 January 2019.

9.  In the Form 86, the applicant did not set out her grounds for relief sought.  In her affirmation in support, she stated that her refoulement would be against human rights law as her life would be in danger in Vietnam; the Director and the Board did not fully consider the real situation of Vietnam, which is more serious than the country of origin information.

10.  A hearing was scheduled on 7 October 2020 but the applicant was absent from the hearing.  Her absence is treated as waiving the right for an oral hearing.  The application is therefore considered on the papers.

Discussion

11.  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.

12.  In the present case, the Board mainly dealt with BOR 2 risk and found that there is nothing in the evidence to show that the applicant will be at risk of such harm.  It appears that the Board treated the applicant’s appeal as one against the second decision of the Director only.  The reason is obvious.  As can be seen in the Board’s covering letter to the applicant dated 17 January 2019 which referred to “(the applicant’s) petition against the immigration officer’s decision as contained in the Notice of Further Decision of 10 January 2017 attached to (the applicant’s) Notice of Appeal/ Petition received on 21 March 2017.”  Such reference indicates that the applicant only attached the second decision of the Director as the subject decision of her intended appeal.  On this basis, the Board properly only dealt with the BOR 2 risk.  In any event, the Board stated that its conclusion was based on the findings of material facts: (a) the applicant’s problem with her loan creditor was a private dispute with no involvement of the Vietnamese government; (b) there is no evidence to show that the Vietnamese government has acquiesced in the threats of the creditor; (c) there was no evidence to show that the Vietnamese government was unwilling or unable to afford protection to the applicant.  On these findings of fact, the Board would have no doubt dismissed the appeal even if the applicant had also appealed on any other applicable grounds other than BOR 2 risk.

13.  The Board’s stated at para [8] of its decision that “the perpetrator that BOR 2 protects against is the government of nationality of the Petitioner that is the government of Vietnam.”  It might be said that the ambit of the protection is not so confined.  In any event, the Board made it clear that its conclusion was based on the findings of material facts including that there is no evidence to show that the Vietnamese government has acquiesced in any attempt by her loan creditor to kill the applicant, or the Vietnamese government was unwilling or unable to afford protection to her [10(b) and (c)].  On these findings, I cannot see any additional basis for advancing a case on BOR 2 risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.

14.  The Board did not hold an oral hearing.  As has been held by the Court of Appeal, there is no absolute right to an oral hearing, as the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26.

15.  The Board did not challenge the factual basis of the applicant’s claim, there were no other issues that would require to be dealt with in an oral hearing.  It was entitled to decide in the circumstances that no useful purpose would be served by holding such a hearing.

16.  As for the decisions of the Director, when the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision. In any event,the Director did not take issue with the applicant’s asserted primary facts and events.  He however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, he rejected the applicant’s claim based on his assessment of the risk of harm as well as his findings on the availability of state protection and viability of internal relocation.

17.  Assessment of evidence, evaluation of risk and the findings on availability of state protection and 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 complaints in the applicant’s affirmation in support only contain bare assertions without details and evidence in support that the non-refoulement would be against human rights law; and that the Director and the Board did not fully consider the real situation in Vietnam.  The bare assertions cannot amount to viable grounds of review.  There is no reasonably arguable basis to challenge the findings of the Director and the Board.

19.  Indeed, the applicant’s claim is a weak case.  Even on the applicant’s own account, the alleged past ill treatment was of low intensity and frequency.  The evidence can hardly establish that there are substantial grounds for believing that she would be at real risk of any type of proscribed harm, if refouled.  The decisions of the Director and the Board are eminently reasonable.

20.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error or procedural unfairness in their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

21.  For the reasons given, there is no prospect of success in the applicant’s intended application.  I refuse to grant 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