NGUYEN THI DUNG AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1309/2019

[2024] HKCFI 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1309 of 2019

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 1st and 2nd Applicants being present and 3rd Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st and the 2^nd applicants, respectively aged 29 and 30, are wife and husband. The 3^rd applicant, aged one and a half, is their daughter. By Order dated 1 December 2023, the Court granted leave for the 3^rd applicant to join the application of the 1^st and the 2^nd applicants.

2.  Since the 3^rd applicant is a minor, the Court had advised the 1^st and 2^nd applicants to obtain legal representation for her daughter and the matter was adjourned for 3 months for her to do so.

3.  This is the applicants’ joint application for judicial review of the Decision dated 10 May 2019 by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s First Decision”).

4.  The 3^rd applicant was born after her parents had come to Hong Kong. The 1^st applicant therefore applied for non-refoulement claim for the 3^rd applicant, acting as the 3^rd applicant’s guardian ad litem. The Director rejected this application and the Director’s Decision was appealed to the Board of a different adjudicator. By Decision dated 28 September 2023 (“the Board’s Second Decision”), the Board dismissed the appeal. The Board’s First Decision and the Board’s Second Decision are collectively called (“the Board’s Decisions”).

5.  The Court will consider the Board’s Decisions together.

6.  On 6 March 2024, the 1^st and the 2^nd applicants appeared before the Court. The daughter was absent and she was represented by her parents. The 1^st applicant confirmed that she had received the Court’s letter advising her to obtain legal representation, but she elected not to apply for legal aid.

7.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (the “Director”) is the interested party and the relief sought is the Board’s Decisions.

The applicants

8.  The applicants are nationals of Vietnam. They entered Hong Kong illegally on 28 September 2015. The next day, they surrendered to the Immigration Department. On 29 September 2015, they lodged their respective non-refoulement claims. On 2 March 2017, they requested that their claims should be assessed together. The applicants’ claims were made on the basis that, if refouled, they would be harmed or killed by their creditor.

9.  In short, the applicants intended to establish a seafood business. On 15 July 2014, through their friends, they took out a loan from the creditor and immediately started their business. However, three months later, their business collapsed due to the pollution and pandemic. While they were able to repay the monthly interests, at the deadline of the loan, they could not settle the principal. On 15 July 2015 onwards, the creditor had been chasing for repayments. On two occasions, the creditor and his followers assaulted the applicants and threatened to kill them if they failed to repay the loan. Out of fear, the applicants fled to Hong Kong for protection. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 22 March 2017 by the Director (the “Director’s First Decision”).

10.  Acting as the guardian ad litem of the 3^rd applicant, the 1^st applicant applied to the Director for non-refoulement claim for the 3^rd applicant. By Notice of Decision dated 15 March 2023 (“the Director’s Second Decision”), the Director, for the same reasons as the Director’s First Decision, rejected the 3^rd applicant’s claim. The Director’s First Decision and the Director’s Second Decision are called (“the Director’s Decisions”).

The Director’s Decisions

11.  The Director considered the applicants’ claims 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”).

The Director’s First Decision

12.  By way of the Director’s Decision dated 22 March 2017 (“the Director’s First Decision”), the Director dismissed the claims of the 1^st applicant and the 2^nd applicant. In elaboration, the Director found that (i) the injuries sustained by the 1^st and 2^nd applicants failed to attain the minimum level of severity and the dispute was a private one without state involvement [11]-[12]; (ii) state protection would be available to them [13]-[15]; and (iii) internal relocation was a viable option [16]-[22].

The Director’s Second Decision

13.  As the 3^rd applicant’s facts in support of her claim relies upon the facts of the 1^st and the 2^nd applicants, by Notice of Decision dated 15 March 2023 (“the Director’s Second Decision”), the Director also dismissed the 3^rd applicant’s claim.

The Board’s Decisions

The First Board’s Decision

14.  The applicants appealed the Director’s First Decision to the Board. On 26 September 2018, the Board conducted an oral hearing for their appeals, during which the wife took the primary role in giving the oral testimonies as the husband’s head was said to be injured during the assaults [25].

15.  The Board recapped the applicants’ claims and considered their oral testimonies [12]-[34]. Having assessed the evidence, the Board made the following findings. It found that the applicants’ evidence were conflicting in many aspects [42]; that their claim that the creditor still visited their house was based on hearsay information [43]; that there was no evidence that the police would not assist them nor was there evidence that the state was involved [44]; and that the country of origin information showed that state protection was available to them [60];[65].

16.  Even assuming the applicants were telling the truth, the Board found that the creditor was more concerned about getting repaid instead of harming or killing the applicants [63]; that the applicants adduced no evidence about the creditor’s influence [63]; that it was a private monetary dispute [64]; that the injuries failed to attain a minimum level of severity [69] and that internal relocation was a viable option [76]-[80].

17.  For the above reasons, the Board dismissed the 1^st and the 2^nd applicants’ appeals and confirmed the Director’s First Decision.

The Second Board’s Decision

18.  On behalf of the 3^rd applicant, the 1^st applicant appealed the Director’s Second Decision to the Board with a different adjudicator. This Board held a hearing on 10 August 2023. The 1^st applicant gave evidence before the Board [50].

19.  Having considered the evidence, the Board found that the 1^st applicant’s story in support of her claim and her husband’s claim was a fabrication. The Board found that the 1^st applicant was an unreliable witness [106] – [112]

20.  As the 3^rd applicant relied upon her parent’s facts, the Board was not persuaded that the 3^rd applicant would be subjected to any ill-treatment from the money lender as alleged. [114]

21.  The Board then went further to consider the Fabio’s case and assessed the 3^rd applicant’s case separately. It came to the conclusion that there was no child specific issue in this claim, state protection would be available to her and internal relocation would be a viable option for her parents. Having found that the case of the 1^st applicant and the 2^nd applicant was a fabrication, the Board therefore dismissed the 3^rd applicant’s appeal and confirmed the Director’s Second Decision.

Application for leave to apply for judicial review

22.  The 1^st and the 2^nd applicants filed Form 86 on 16 May 2019 for leave to apply for judicial review of the First Board’s Decision.

23.  Form 86 was amended to add the 3^rd applicant, whose claim relies on her parents’ claims and the 1^st applicant is her guardian ad litem.

24.  In the 1^st and the 2^nd applicants’ affirmation in support of their joint application, the applicants said that if they return to Vietnam they would be seriously harmed or even killed by the creditors and their subordinates.

DISCUSSION

25.  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 applicants’ 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

26.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she understands the Board’s Decisions. They cannot go back to Vietnam as they will be harmed or killed by the creditor. As the minor was not legally represented, I asked the 1^st applicant if there is any child specific issue that she wants the Court to take into consideration for their application. The 1^st applicant said that the daughter is a member of the family. They are unable to repay the creditor and the family will be in danger.

The First Board’s Decision

27.  For the reasons given by the First Board in paragraphs 15-17, supra, the First Board dismissed the 1^st and the 2^nd applicants’ appeal.

28.  The 1^st and the 2^nd applicants have raised no valid ground to challenge the First Board’s Decision. There is no reason for this Court to interfere with the First Board’s finding of the facts.

29.  The 1^st and the 2^nd applicants fail to show that they have a realistic prospect of success in their intended judicial review of the First Board’s Decision.

The Second Board’s Decision

30.  The Second Board had re-assessed the evidence of the 1^st applicant on the facts of their claim. For the reasons given in paragraphs 19 and 20, the Second Board found that the facts in support of the applicants’ claim are fabrication. The Second Board had also taken into consideration the Fabio case and conducted a separate assessment for the 3^rd applicant. It found that there is no child specific issue that would support the 3^rd applicant’s claim. It dismissed the 3^rd applicant’s appeal and confirmed the Director’s Second Decision.

31.  I had also enquired with the 1^st applicant if there is any child specific issues for the 3^rd applicant. The 1^st applicant’s reply does not raise any child specific issue that will support their claim. I see no other child specific that had not been raised before the Second Board if the 3^rd applicant were legally represented.

32.  The applicants fail to show that they have any realistic prospect of success in their proposed judicial review of the Second Board’s Decision.

CONCLUSION

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