PHAM THI DINH v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 382/2021

[2021] HKCFI 2067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 382 of 2021

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.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 March 2021 made by the immigration officer on behalf of the Director of Immigration (“the Director’s Decision”) refusing the applicant’s request for making a subsequent claim, pursuance to section 37 ZO of the Immigration Ordinance, Cap.115 (“the Ordinance”), for non-refoulement protection under the unified screening mechanism.

2.  In the application to the Immigration Department for non-refoulement claim, the applicant and her son jointly made the application and she was acting as her son’s guardian ad litem.  The Director rejected their claim.  They appealed to the Torture Claim Board (“the Board”). Before the Board heard their appeal, the applicant withdrew their joint appeal. The Board accepted her application and became functus officio.  The applicant made her subsequent claim herself and her application was rejected by the Director.  Now, by Form 86, the applicant applies for judicial review of the Director’s Decision.

3.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant’s case

4.  The applicant came to Hong Kong on 10 April 2015 illegally.  She surrendered to the Immigration Department on 2 June 2015.  Her son was given birth on 27 February 2017.  By written representations dated 30 June 2015, 14 July 2015 and 15 January 2018, the applicant and her son raised non-refoulement claim with the Immigration Department.

5.  She claimed that in 2012, she borrowed 500 million Vietnam currency from a creditor for her fruit stall business.  She was unable to pay the interest.  The creditor sent several people to her stall to demand payment.  She was unable to pay.  They assaulted her.  One person put his knife on her neck, causing bleeding.  He said that he did not intend to kill her, but if she still did not pay the next time, he would do so.  She was afraid and left her home to live in the upper village, where she lived for 3 years without incident.  In 2015, she finally came to Hong Kong on the advice a neighbour from the same village.  In May 2016, she met a man in Hong Kong.  However, he deserted her.  In February 2017, she gave birth to her son.

6.  Her application was based upon the Torture risk under Part VIIC of the Immigration Ordinance (“the Torture risk”), Article 3 of the Bill of Rights Ordinance, Cap. 383 (“the BOR 3 risk”), the Convention relating to the Status of Refugees (“the Persecution risk”) and Article 2 of the Bill of Rights Ordinance, Cap. 383, the Right of Life (“the BOR 2 risk”).

The Director’s Decision

7.  By the Director’s Decision dated 19 March 2018, the Director rejected their claim on all four risks above.  The Director assessed that future risk of harm upon the applicants’ return to Vietnam was assessed to be low [11].  The availability of state protection [15] and internal relocation alternatives further lowered or negated the perceived risks [18].  The applicants also failed to establish a personal and real risk of being arbitrarily deprived of her life or her son’s life in violation of BOR 2(i) or BOR 3 upon their return to Vietnam.  The claimants’ claim under the Persecution risk was not established [31-32].  The applicants also failed to establish torture within the context of section 37U(1) of the Ordinance [35].

8.  The applicants appealed to the Board.  However, before their appeal was heard, the applicant on behalf of herself and her son, applied to withdraw their appeal.

The application for subsequent claim for non-refoulement

9.  By letter dated 5 February 2021, the applicant, through her legal representative, requested the Director to allow her to make a subsequent claim for non-refoulement protection.

10.  The Director requested her to provide further information and evidence in writing in support of her application within 14 days of the letter.  The applicant’s lawyer replied that the applicant went back to Vietnam voluntarily in September 2019 and was attacked by the same people in December 2019.  She was almost killed in that encounter and the police paid no heed to her complaint.  She had no choice but fled.  Those are the significant change of circumstances for her subsequent claim.

The Director’s reasons for refusing her application

11.  Section 37ZO of the Ordinance provides limitation and the Director’s power in application for subsequent claim:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3)   In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.”

12.  Having considered the applicant’s case and for the reasons that follow, the Director rejected the applicant’s request for a subsequent claim for non-refoulement because there was no significant change of circumstances since her previous claim was finally determined.

(1)  The Director relied upon his own findings in his Decision dated 19 March 2018, which turned down her non-refoulement claim.  See paragraph 7 above.

(2)  The additional information in her lawyer’s letter of 4 March 2021, which were the facts she had relied upon and had been considered by the Director.  She managed to flee away and sneaked into Hong Kong.  Thus, the additional information does not constitute any change of circumstances in support of her application.

DISCUSSION

13.  In support of her application for leave for judicial review of the Director’s Decision, the applicant put forward the following reasons in her affirmation:

(1)  the Director’s Decision is not reasonable or fair (as required by Wednesbury test) because:

  i.  he did not consider that the applicant must be protected from extra-judicial killings if she is deported to her country;

  ii.  he did not give the applicant sufficient time to arrange relevant evidence for her claim;

  iii.  he did not consider state acquiescence in this case as police in Vietnam had not provided reasonable protection for the applicant;

  iv.  he had given insufficient consideration to the country of origin information that hold in favour of the applicant’s argument that state protection is not available to her.

(2)  the Director has failed to attain the high standard of fairness required by the Wednesbury test in the Decision.

14.  The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …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.”

16.  Those grounds in paragraph 13 do not assist her for the reasons below:

(1)  Ground (1) boils down to state protection as the applicant alleged that she was nearly killed by her creditor when she returned to Vietnam voluntarily in 2019.  She complained to police but the police paid no heed to her complaint.  She was legally represented.  Her lawyer was aware that the burden is on her to prove state acquiescence - Section 37 ZO (2) of the Ordinance.  Her evidence of one single incident is not sufficient to establish state acquiescence.  It is proper for the Director to resort to the COI materials.  To say that the Director had paid not sufficient consideration to those materials in favour of the applicant’s case is only the applicant’s opinion without any evidence in support of it.  This ground fails.

(2)  Ground (2) is not supported by any evidence.  It is therefore a comment or the applicant’s opinion only.  This ground fails too.

(3)  Even if Grounds (1) and (2) were established, the applicant has the option of internal relocation, which she had proved by her own evidence.  She had stayed in the upper village for three years without any interference from the creditor.  The Court of Appeal in TK v Michael Jenkins Esq. v. Director of Immigration[2013] HKC, 526, CA [32 & 33] held that she should not be eligible for non-refoulement protection if internal relocation is available to her.

17.  The Court does not find any error of law or procedural unfairness in the Director’s Decision.  The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  There is no evidence that shows that the applicant has any reasonable chance of success in her intended judicial review.

CONCLUSION

19.  I therefore refuse to grant leave for the applicant to apply for her intended judicial review.  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