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HCAL 2856/2018
[2020] HKCFI 1857
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2856 of 2018
BETWEEN
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Nguyen Thi Bich Thoa |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 7 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. 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.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended to the effect that the Board is proposed respondent and the Director of Immigration (“the Director”) is interested party.
The applicant
4. The applicant is a Vietnamese national. For the past 31 years, she came to Hong Kong as an illegal immigrant for a number of times and every time she was repatriated back to Vietnam. The last time she came to Hong Kong Illegally is on 24 April 2013. She was arrested and charged with the offence illegally entering Hong Kong and also the offence of possessing a forged Hong Kong Identity Card. She was sentenced to imprisonment. On 3 September 2014 whilst being detained in prison, she lodged her non-refoulement claim.
5. The applicant claimed that, if refouled, she would be framed up by police in her home country for attempted subversion of the Vietnamese government, for which, she would be detained, tortured and even sentenced to death.
The Director’s Decision
6. The Director considered her application in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“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”).
7. By Notice of Decision dated 22 February 2017 (“the Director’s Decision”), the Director refused her claim for the reason that the level of risk that she would be harmed upon her return to Vietnam would be low [18]; that state protection was available to her [28] and that internal relocation was an option open to her [38].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision and attended the hearing on 1 November 2018.
9. The Board rejected her appeal and confirmed the Director’s Decision.
10. The Board considered the applicant’s evidence and for the reasons [28-57], found that:
a. she is an incredible witness and her evidence untruthful, therefore her evidence was not accepted;
b. she had come to Hong Kong for many times, but on each occasion, she did not ask for non-refoulement protection as she was arrested by police and was repatriated;
c. her evidence that she was adversely targeted by the local government and ill-treated was rejected as there was no objective evidence in support of her allegations;
d. it did not accept that she would be ill-treated or at risk of arbitrary deprivation of life if she returned to her home country;
e. even if the applicant would be ill-treated back home, any ill-treatment would not be due to a Convention reason [75];
f. state protection would be available to her [84]; and
g. internal relocation would an option open to her [113].
Application for leave to apply for judicial review
11. The applicant filed Form 86 on 13 December 2018 for leave to apply for judicial review of the Board’s Decision on the ground that its decision was unfair. She was suspected by the police to be under the influence of capitalism; that she tended to subvert the government and that she was a spy. During her detention in Vietnam, she was assaulted and threatened by police.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.
13. 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.”
14. The grounds raised by the applicant are her opinions without any evidence or particulars in support of them. her fear of being framed up by police and she would be subjected to death penalty was taken note by the Board. However, there is no evidence that she was charged with the offence of subversion by the government. The Board also took the view that she had no evidence to support her allegations [44-48]. In the circumstances, the Board was simply right to attach no weight to her allegations.
15. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
16. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
17. I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 5th day of August 2020
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 5/8/2020
Nguyen Thi Bich Thoa
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5/8/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6340/17/2/339/V1017
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3113/16 (formerly RBCZ 3001833/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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