VU THI LAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1115/2020

[2025] HKCFI 4341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1115 of 2020

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 oral submissions by the Applicant 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 22 May 2020 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant did not request a hearing. I shall deal with her application on the papers.

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 is a national of Vietnam. Police arrested her on 11 December 2019 because she had illegally entered Hong Kong, which she admitted. She lodged a non-refoulement claim with the Director of Immigration (“the Director”) on the basis that, if refouled, she will be harmed or killed by her creditor because she was unable to repay a debt of 500 million VND, which she and her husband had borrowed for their pig-rearing and farming business, which failed.

5.  According to the applicant, the creditor and other people had gone to her home and vandalized her home. The creditor had also threatened to kill her if she could not repay the loan.

The Director’s Decision

6.  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”).

7.  By way of Notice of Decision dated 11 March 2020 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated. The Director further found that state protection will be available and internal relocation is viable, which will mitigate or neutralize the applicable risks.

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 15 May 2020, the Board conducted an oral hearing for her and the Board had asked her a number of questions in relation to her claim.

9.  Having considered the applicant’s evidence, the Board found that she was not a truthful witness and it rejected her evidence. [21]-[22] The Board further found that state protection will be available to her [27] and internal relocation is viable. [48]-[52] See the Board’s Decision through the hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL001115_2020_files/the_Board's_Decision.pdf.

10.  For the above reasons, the Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 5 June 2020 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has not raised any specific reason to challenge the Board’s Decision in her affirmation in support of her application.

DISCUSSION

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

14.  The Court will bear in mind that the Board’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. (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.”

16.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.  I refuse to grant leave to the applicant 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