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

HCAL 342/2022

[2024] HKCFI 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 342 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 Applicant being present in open court;

1.   The extension of time for the application for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision, which is 4 May 2019. Her application was filed on 16 May 2022, which is more than 3 years. This issue will be dealt with below.

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 8 January 2024.

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 and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 49, is a Vietnamese. She had entered Hong Kong illegally twice in the past and was repatriated. On 13 July 2015, she entered Hong Kong illegally for the third time and was arrested by the police on 25 September 2015. On 26 September 2015, she was convicted for using a forged identity card and overstaying and was sentenced to imprisonment for 15 months. The applicant lodged a non-refoulement claim on 11 November 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor, Nguyen Van Tien (“the creditor”) because she failed to repay the loan.

5.  According to the applicant, she married her husband in late 2000 and they had a son born on 26 January 2001. One day in 2013, she confronted her husband after discovering that he was a drug addict. Her husband then assaulted her, causing bruises on her chest and face. The applicant did not report the matter to the police, nor did she seek any medical treatment. Since then, her husband continued to assault her whenever she refused to give him money for the drug. There was even an occasion that her husband used a knife to strike the back of her head, causing her to lose consciousness. By October 2013, she could no longer tolerate the behaviour of her husband. So, she left him and went to Hanoi to stay with her friend. She worked as a dishwasher in Hanoi. Later on, as she was unable to find a job, she went back to live with her husband. The applicant confirmed that her husband no longer demanded money from her and she lived with him without any problem until she left Vietnam.

6.  In 2014, the applicant borrowed money from the creditor to start up a pig farm. The applicant was aware of the triad background of the creditor in advance, but she nevertheless went ahead as she was unable to provide any asset to the banks as collateral. By April 2015, not long after the operation of the pig farm, a great portion of the pigs suffered illness and died. She was also unable to sell the remaining living pigs. The applicant therefore had no means to repay her debt.

7.  Initially, the creditor and three of his underlings threatened the applicant that they would involve her in prostitution or in a drug deal if she failed to repay the loan. In a morning of early 2015, upon the applicant’s refusal to get involved in prostitution or a drug deal, she was imprisoned by the creditor in a small house and was assaulted by wooden sticks. The applicant suffered bruises on her hands, legs and chest. She was not given any food or water during imprisonment. Later that night, the creditor sold her to a brothel. The applicant was forced to work as a prostitute for 3-4 days until she escaped with the help of a customer.

8.  The applicant went home after her escape from the brothel. Again she did not report the matter to the police, nor did she seek any medical treatment. Around ten days after the escape, her son told her that while she was hiding in the fields near her home, four males and a female came to ask for her whereabouts. The applicant thought the creditor and the boss of the brothel were looking for her. Eventually, she left Vietnam for China on 7 July 2015. On 13 July 2015, she sneaked into Hong Kong illegally by boat.

9.  The applicant maintained contact with her son while in Hong Kong. She was informed that there were still people looking for her at home.

10.  The applicant was of the view that she could not seek protection from the police because they were corrupt and could do nothing against triad members. She was also afraid that the creditor would take adverse action if she reported the case to police. The applicant also considered relocating to other places within Vietnam not viable because the creditor could utilize his triad network to locate her.

11.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 30 November 2016 (“the Director’s Decision”).

The Director’s Decision

12.  The Director considered the 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”).

13.  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 ill-treatment from the creditor is indicative of a small future risk of harm upon her return to Vietnam [16]; (ii) state protection will be available to her upon her return [19]-[21]; (iii) internal relocation is viable [17], [22]-[27] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [28]-[33], Persecution risk [34]-[39] or Torture risk [40]-[42].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 12 October 2018, for which the applicant failed to attend. The Board was satisfied that the Notice of Hearing had been duly served on the applicant. It then sent a notice to the applicant under section 15 of Schedule 1 of the Ordinance, requesting the applicant to explain her absence on the hearing date within 7 days of the notice. The applicant did not respond to the notice. Therefore, it decided to determine the appeal in her absence [26]-[31].

15.  Having considered the applicant’s evidence, the Board was of the view that it was a monetary dispute between the applicant and her creditor without any involvement of the government and the previous actions taken by the creditor were merely intended to pressurize the applicant to repay the loan, rather than to really cause harm on her and forcing her to be a prostitute does not pass the threshold to amount to such pain and suffering under BOR 3 risk [47]-[53]. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirement under Torture risk [43]-[53], [74], BOR 2 and BOR 3 risk [75]-[83] or Persecution risk [84]-[86]. Furthermore, state protection and internal relocation were also available to her [54]-[72].

16.  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

17.  The applicant has filed Form 86 dated 16 May 2022 for leave to apply for judicial review of the Board’s Decision.

18.  She has raised the grounds below in support of her application.

(1)  It is not plausible for her to relocate to another place to live in Vietnam because there are many difficulties and obstacles and her health is not good. There is no guarantee that she will be able to adapt to the new places and find a job to earn money to support herself.

(2)  The gangsters has a nationwide social network and they may locate her.

(3)  The gangsters may kill her if she returns to Vietnam. The adjudicator is wrong to say that she will safe to return to Vietnam.

DISCUSSION

19.  As mentioned in paragraph 1, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, she said that she understands the Board’s Decision and she asked for assistance with the procedure.

22.  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.”

23.  The Board has given its reasons in paragraph 15 for its determination. Although it may be arguable whether forcing the applicant to be a prostitute will pass the threshold for BOR 3 risk, the Board had found that state protection and internal relocation are available options to her and therefore, she will not be eligible for non-refoulement protection in Hong Kong. The applicant has not been able to raise any valid reason to challenge the Board’s Decision, not least on state protection and internal relocation.

24.  As to the grounds in paragraph 18, ground (1) has been considered by the Board, which found that internal relocation would be feasible. Ground (2) and ground (3) are only her speculation without any evidence in support.

25.  There is no reason that the Court should interfere with the Board’s Decision.

26.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

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

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