LUONG THI THUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 188/2021

[2021] HKCFI 2068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 188 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 present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review the Decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 3 December 2020 (“the Board’s Decision”).

2.  The applicant is an illegal immigrant and she raised her non-refoulement claim with the Immigration Department.  The Director’s Decision rejected her claim for non-refoulement.  She appealed to the Board and before the Board heard her appeal she withdrew her appeal and the Board, by its Decision, decided to accept her withdrawal and dismissed her appeal.

3.  The applicant did, on request by the Court, attend the Court for providing information for the Court’s decision.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

5.  The applicant is a citizen of Vietnam.  She admitted that she came to Hong Kong illegally by boat on 28 October 2019.  She had committed offences in Hong Kong, for which she was charged, convicted and sentenced.  She lodged non-refoulement claim with the Immigration Department by way of written representations on 10 December 2019 and 25 December 2019.

6.  Her reason for her application is that if refouled, her life would be in danger as she failed to repay the outstanding debts to her two creditors in Vietnam, who are members of triad society in Vietnam.  In or about 2014, she borrowed money from two creditors for expansion of her business.  She was unable to pay her debts.  The creditors came to her house with some other people.  As she was unable to repay the debt, they assaulted her with wooden sticks.  She was injured.  Her head bled and she had bruises over her body.  She moved to live with her uncle and aunt.  The creditors threw faeces and urine into her house.  In October 2019, she left Vietnam for Hong Kong.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

7.  The Director considered her application in relation to the following risks:

a. risk of torture under section 37 U of the Immigration Ordinance, Cap. 115 (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 under RC”).

8.  By Notice of Decision dated 25 May 2020 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.  She found that there were no substantial grounds for believing that there would be any real and substantial risk of her being harmed or killed by the two creditors if she returned to Vietnam [12]; that there was no evidence that the state was involved [15]; that state protection would be available to her [16] and that internal relocation was an option open to her [21].

The Board

9.  The applicant appealed to the Board.  However, before her appeal was heard, she wrote a letter dated 28 October 2020 to the Board, saying that she had waited for the Board’s decision for almost 5 months; that her mother was ill in Vietnam and she wanted to go back to Vietnam to look after her.  She asked the Board to hear her appeal and sentence her.

10.  On 19 November 2020, the Board sent her a letter, telling her that the Board presumed that she applied to withdraw her appeal; that it was safe to return to Vietnam; that she was aware of the consequences of the proposed withdrawal, that is to say, that her appeal would be dismissed and the Director’s Decision would be confirmed, in which event, no further action would be taken by the Board in relation to her appeal.  The Board requested her to reply within 7 days from the date of its letter.  However, she did not respond to the letter.

11.  The Board, having considered that she had made the decision of withdrawing her appeal of her own free will, knowing the consequences of her decision, by its Decision, informed her that it had approved her application and dismissed her appeal.  The Board had also confirmed the Director’s Decision.

Application for leave for judicial review

12.  By Form 86 dated 5 February 2021, under Order 53, rule 3(2) of the RHC, the applicant applied for leave for judicial review the Board’s Decision.

13.  In her affirmation in support of her application filed on 19 February 2021, she only said that she asked for leave for judicial review of the Board’s Decision without setting out any reasons.

14.  It is for this reason that this Court considered that her assistance should be required to consider her application and she was invited to appear before this Court.

DISCUSSION

15.  The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, 13 June 2019 held:

“41. … …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … … s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2)  if he can fulfil the requirements in sub-ss (a) and (b) thereunder.”

16.  At the hearing, the applicant said that she made the application to the Board because she wanted to return to Vietnam to look after her mother, who was seriously ill.  She knew that she had to withdraw her appeal before she could leave Hong Kong.  She did receive the Board’s letter.  But she did not understand the contents of the letter.  She did not respond to it.  Now, her mother had already passed away.  She did not want to go back to Vietnam because she is still unable to repay the debt and she is old and suffering from high blood pressure.  She is still afraid that the two creditors will harm her if she returned to Vietnam.

17.  It is thus quite clear that she wrote to the Board of her own accord, knowing that her application was to withdraw her appeal.  She might not be clear about the consequences of her application of withdrawal.  But those are the legal consequences following her application for withdrawal.  Whether she was clear about those consequences should not change the legal position if her decision was made on her own free will and it is a valid withdrawal of her appeal.

CONCLUSION

18.  The Board was correct to accept her application for withdrawal of her appeal.  As such, the Board becomes functus officio. There is no reasonable chance that her intended appeal would succeed.  Accordingly, I dismiss the applicant’s application for leave for judicial review the Board’s Decision.

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