TRAN THI KHOA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1343/2018

[2021] HKCFI 581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1343 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;     or
	consideration of the documents and the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Vietnam who together with her husband and daughter entered Hong Kong illegally on 11 May 2016 and surrendered to the Immigration Department on the following day to jointly raise a non-refoulement claim on the basis that if they returned to Vietnam they would be harmed or killed by her husband’s creditor for failing to repay his loan.     

2.  By a Notice of Decision dated 16 November 2016 the Director of Immigration (“the Director”) rejected the claim of the Applicant and her family on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“the Immigration Ordinance”) (“torture risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and her family and found no substantial grounds for believing that the risk of harm from her husband’s creditor and his followers is likely to materialize upon their return to Vietnam due to the low intensity and frequency of past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicant and her family if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 95 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move with her husband and daughter to other part of Vietnam away from their home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her husband’s creditor or his followers to locate them.

4.  On 28 November 2016 the Applicant and her family lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended two oral hearings on 30 January 2018 and 24 April 2018 before the Board during which the Applicant and her husband gave evidence and answered questions put to him by the Adjudicator for the Board when they admitted of fabricating their claim of being threatened by their creditor and instead raised a new claim of having converted to Christianity in Hong Kong and feared of discrimination or persecution if returned to Vietnam due to their new religion, but of which the Board did not find any evidence from them or from the relevant COI in support of their claimed fear, and on 27 June 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 10 July 2018 the Applicant by herself only filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that her life would be in danger if returned to Vietnam but without putting forth any proper ground for her intended challenge.

6.  However, before her application could be dealt with by the court, the Director on 12 January 2021 informed that the Applicant had since been removed to Vietnam at her own request, and on 1 March 2021 the Director also confirmed that her husband and daughter had also departed Hong Kong at around the same time.

7.  As such, and as section 37ZF of the Immigration Ordinance provides that a torture claim made by a claimant who is subject to removal must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, and that such claim treated as withdrawn must not be re-opened.

8.  In the premises, and for the reasons given, I accordingly dismiss the Applicant’s leave 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