DINH THUY TRANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 975/2023

[2024] HKCFI 2636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 975 of 2023

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 absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an This is an application by Madam Dinh Thuy Trang (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 17 May 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 17 June 2022 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  Both the DOI Decision and the Board’s Decision were in Chinese.  The Applicant completed the Form 86 herein (“Form 86”) in English containing detail grounds also in English without interpretation but filed her English Supporting Affirmation (“Supporting Affirmation”) with the assistance of an interpreter. On 9 July 2024, the Applicant filed another affirmation in English also with the assistance of an interpreter applying to withdraw this intended judicial review application (“Withdrawal Application”).  On the same day, the Applicant also lodged an English statement without interpretation service.  I am satisfied that the Applicant has the ability to understand ordinary English but may require interpretation for English documents.  As such, I decide to issue this decision in English.

Background of the Applicant

3.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Vietnamese.  She was born on 14 March 1999 in Huyen Thach An, Cao Bang, Vietnam.

4.  She received about 10 years of education and had about 6 years work experience before she came to Hong Kong in 2021.  She was married with a son but had separated with her husband since 2019. 

5.  From 2015 to 2018 and from 2019 to 2020, she assisted her family in farming and family business of selling agricultural products.

The Claim

6.  The Applicant claimed that she had borrowed VND 600 million (“Loan”) from a creditor (“Creditor”) in early 2020 to finance the expansion of her family’s business.  She had to pay a monthly interest of VND 6 million with the principal to be repaid after 2 years.

7.  The Creditor was a loan shark.

8.  The Applicant could not afford to pay the monthly interest since July 2020 due to outbreak of Covid-19 pandemic in 2020 which adversely affected her family’s business.  She called the Creditor asking for time extension to pay the interest.  The Creditor agreed to grant 3 months’ time extension to the Applicant but threatened her that if she still failed to pay the interest, he would chase her at her home and harm her. The Creditor kept calling the Applicant threatening that if she still failed to pay the interest within the extended time, he and his followers would kill her.

9.  In November 2020, the Creditor sent 4 followers to the Applicant’s home to demand for repayment.  Two of them carried wooden rods.  When the Applicant was unable to pay, they vandalized her home.  They threatened that if the Applicant still failed to repay the Loan within a few days, they would kill her.

10.  They came again a few days later. When the Applicant was still unable to pay, they damaged the furniture and windows of her home and threatened to kill the Applicant if she was still unable to pay when they came next time.

11.  In December 2020, 5 to 6 of the Creditor’s followers came to chase for repayment at the Applicant’s home with 3 to 4 of them holding wooden rods.  When the Applicant was unable to pay, they damaged the properties in her house, pushed her hairs, kicked her and beat her with the wooden rods.  They threatened to kill the Applicant if she was still unable to repay the Loan and the interest when they came next time.

12.  The Applicant sustained bruises all over her body and received treatment at a nearby clinic.  It took her about 1 week to recover.

13.  Knowing that she was unable to repay the Creditor, the Applicant decided to avoid the Creditor.  In December 2020, she went to stay at her friend’s home at Phuong Ngoc Xuan also in Cao Bang and changed her phone number.  She stayed there for about 8 months and the Creditor did not find her.  During this period, her mother and sister told her that the Creditor had sent followers to her home to ask for the whereabouts of the Applicant. 

14.  In September 2021, the Applicant decided to go to Hong Kong.  She left Vietnam on 1 September 2021 for China. From China, she sneaked into Hong Kong on 2 December 2021.

15.  The Creditor did not contact the Applicant’s family after she left Vietnam.

16.  The Applicant claimed that she would be harmed or killed by the Creditor and his followers if she were to return to Vietnam.

Procedural history

17.  The Applicant was arrested by Hong Kong police on 10 February 2022 for remaining illegally in Hong Kong.  She was referred to the Immigration Department on 14 February 2022.

18.  By a written representation of 17 February 2022, the Applicant lodged the Claim. 

19.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)   risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)   risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)   risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

20.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

21.  On 20 June 2023, the Applicant filed the Form 86 seeking leave for judicial review of the Board’s Decision. The Applicant named both the Board and the Director as proposed respondents in the Form 86.

22.  The Applicant filed the Supporting Affirmation also on 20 June 2023.

23.  On 9 July 2024, the Applicant filed the Withdrawal Application applying to withdraw and cancel her judicial review application because she wanted to return to her country.  She stated that it was safe for her to return to Vietnam.

The DOI Decision

24.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by the Creditor upon her return to Vietnam.

25.  The Director noted that the Creditor had not inflicted serious injuries to the Applicant but allowed time for the Applicant to repay the Loan.  The ill-treatment inflicted by the Creditor on the Applicant did not attain a minimum level of severity.  The Creditor and his followers had the opportunities to seriously harm or kill the Applicant when they visited her home with weapons but they refrained from doing so.  This showed that the Creditor did not really intend to kill or seriously harm the Applicant.  They only wanted to press the Applicant to repay the Loan.

26.  On the issue of state protection, the Director after considering the relevant country of origin information (“COI”) found that there might be some inefficiency or corruption problems within the Vietnamese police but there were objective indications in COI showing that the Vietnamese government took steps to improve the police force.  The Director found that the Vietnamese government was able and willing to protect the rights of its citizens. 

27.  Although the Applicant asserted that the Vietnamese police would not give her any protection, this was unsupported by any evidence.  The Applicant had never reported the Creditor to the Vietnamese police.  COI showed that the Vietnamese government would take actions against corrupt police.  The Applicant’s dispute with the Creditor originated from the Loan.  It had nothing to do with the police or the government authorities.  There was no basis for her to claim that the police would acquiesce to the Creditor’s illegal actions or fail to protect the Applicant.

28.  The Director further found that internal relocation would be viable.  The Applicant had stayed at her friend’s house in the same province for 8 months and the Creditor was unable to locate her.  The Director was of the view that the Creditor did not have the power or resources to track down the Applicant throughout the whole country.  If the Applicant moved to Da Nang or Ho Chi Minh City, the Creditor would have great difficulty in locating her.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life. 

29.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

30.  The Applicant failed to attend the hearing before the Board scheduled for 12 April 2023 (“Board Hearing”). Pursuant to section 15(1) of Schedule 1A of the Ordinance, the Board may hear the Appeal in the Applicant’s absence.

31.  The Applicant did not ask the Board to fix another hearing date pursuant to section 15(2) of Schedule 1A.  In such case, pursuant to section 15(4)(a) of Schedule 1A, the Board must proceed to determine the Appeal.

32.  The Board after considering the Applicant’s claims including her written representation, her claim form, the record of her interview with the immigration officer, the DOI Decision, her notice of appeal, skeleton submissions of the Director and the COI, found that the risk for the Applicant to be killed after she returned to Vietnam was not real.  She did not face any torture risk, BOR 2 risks, BOR 3 risk or persecution risk.

33.  The Board did not query the Applicant’s evidence but found that the injuries sustained by the Applicant in the attack was not serious.  The Creditor could have harmed her more seriously or even killed her but he did not do so.  The Board found that the Creditor only wanted to put pressure on the Applicant to repay the Loan to him.  The Creditor did not intend to seriously harm her or kill her. 

34.  The Board considered the various grounds under the USM upon which the Claim was based in §§46-55 of the Board’s Decision and concluded that the Applicant’s claims under all the grounds failed.

35.  On basis of the COI, the Board found that state protection was available and internal relocation was viable. 

36.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

37.  In a judicial review, the court does not step into the shoes of the decision makers.

38.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

39.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

40.  Although the Board had mistakenly stated in §§13 and 14 of the Board’s Decision that the incidents concerned occurred in 2019 instead of 2020, I am satisfied that they were only typos which did not affect the Board’s findings.

41.  In the Form 86, the Applicant annexed a statement stating the grounds for her intended judicial review.

42.  The Applicant put forward the following grounds:

(1)   the Director and the Board reached their decisions wrongly and their decisions were not reasonable and fair;

(2)   the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence;

(3)   the Board acted unreasonably and was procedurally unfair by placing too much reliance on COI but failing to take into account the Applicant’s personal background and experience;

(4)   the Director failed to consider or give enough weight to COI in support of the Applicant’s case;

(5)   the Board was procedurally improper and/or unfair when assessing the Applicant’s evidence and unreasonably requiring the Applicant to response to questions that she was not in a position to offer any response;

(6)   the Director was unfair and failed to attain the high standards of fairness in not accepting the Applicant’s assertion on corruption and incompetency of the administration in Vietnam; and

(7)   the Board ought to have allowed the Appeal but instead dismissed the same.  The Board’s Decision was irrational.

43.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents. 

44.  The aforesaid grounds advanced by the Applicant in the Form 86 were without particulars.  They were only bare assertions.

45.  The Applicant alleged that the Director had failed to adequately consider state acquiescence in her feared risk.  After considering all the evidence provided by the Applicant, the Director found insufficient evidence to show state acquiescence in the Applicant’s alleged ill-treatment or feared harms.  Both the Director and the Board were of the view that state protection was available to the Applicant.  The Applicant provided no particulars nor supporting evidence to substantiate her complaint.  Relying on this ground to seek judicial review has no merits.

46.  As pointed out in the Nupur Mst case (supra), assessment of COI materials and state protection were primarily within the province of the Board and the Director.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.  The fact that the Applicant did not agree to the findings of the Board and/or the Director on the COI per se is no ground for challenging their findings. 

47.  Both the Director and the Board had taken into account the personal background and experience of the Applicant and carefully considered all relevant COI before reaching their respective decisions of refusing the Claim or dismissing the Appeal.  I see no merits for this proposed ground advanced by the Applicant to challenge the Board’s consideration of the COI.   

48.  The Board found that the Applicant did not face a real risk of being harmed or killed if she were returned to Vietnam.  After considering the COI and all circumstances, the Board was of the view that state protection and internal relocation would be available to the Applicant in Vietnam.  The Applicant’s proposed challenge to this finding of facts by the Director and/or the Board is not reasonably arguable.

49.  The Applicant did not attend the hearing before the Board.  She had never responded to any questions from the Board.  I see no substance in her allegation that the Board “unreasonably requires me to response [sic] to questions that I was not in a position to offer any response”.  This ground is simply not reasonably arguable.

50.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

51.  Section 15(1) of Schedule 1A of the Ordinance provides that if a claimant does not attend a hearing, the Board may hear the appeal in the absence of the claimant.

52.  The Applicant did not attend the Board Hearing and did not request another hearing to be fixed.  Section 15(4)(a) of Schedule 1A of the Ordinance provides that in such circumstances, the Board must proceed to determine the Appeal.

53.  The Applicant had received the Board’s Decision latest on 20 June 2023 when she filed the Supporting Affirmation exhibiting a copy of the Board’s Decision.  She has had ample time to prepare and produce information or documents, if any, to reply to the adverse findings made by the Board in the Board’s Decision.  The Applicant raised no such issue.  Instead, she applies to withdraw her judicial review application on 9 July 2024.  I see no procedural unfairness in the handling of this case by the Board in accordance with the statutory provisions.

54.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

55.  The Board found that the Applicant did not face a real risk of being harmed or killed when she returned to Vietnam and that state protection and internal relocation would be available to the Applicant if necessary.

56.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

57.  The Applicant subsequently filed the Withdrawal Application on 9 July 2024 stating that she would like to return to her country and it was safe for her to do so.  She also confirmed that she applied to cancel her case out of her own free will.

58.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

59.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

60.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for 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