BUI THI HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 187/2021

[2025] HKCFI 5053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 187 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 20 November 2020 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant did not ask for a hearing.

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.  She was an illegal immigration for the reason that she sneaked by boat on 8 March 2019.

5.  The applicant’s claim was based on her fear of being harmed or killed by her creditor from whom she had borrowed 300 million VND and she was unable to repay her loan.

6.  Details of her claim are set out in the Board’s Decision. See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000187_2021_files/the_Board's_Decision.pdf.

The Director’s Decision

7.  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”).

8.  By way of the Notice of Decision dated 15 July 2020 (“Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 28 September 2020, the Board conducted an oral hearing for her.  She had given oral evidence and answered the Board’s questions.

10.  Having considered the evidence, the Board found the facts below.

(1)   The Board did not believe that the creditor would be interested in locating the applicant all over Vietnam.  Internal relocation is viable.  [19]

(2)   The applicant did not suffer serious ill-treatment or serious harm. Therefore, there will not be substantial risk of persecution.  State protection is available is she returns to Vietnam.  [30]

(3)   Her alleged story was too vague to be reliable.  [34]

(4)   The Board found her dishonest and unreliable.  [36]

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

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

12.  The applicant has filed Form 86 dated 19 February 2021 for leave to apply for judicial review of the Board’s Decision.

13.  The applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

14.  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).

15.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  

16.  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.”

17.  In my view, the Board’s reasons for dismissing the applicant’s claim can sustain without 10(4).  The Board had raised a number of rhetorical questions, which the Board did not put to the applicant for her to answer.  Yet, it came to its conclusions damaging to the applicant.  It should bear in mind that the applicant was not legally represented. This appears unfair and unnecessary.  However, this deficiency will not affect the Board’s conclusion that the applicant’s case had no merit and the Director’s Decision was right.

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

DISPOSITION

19.  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