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HCAL 2729/2018
[2021] HKCFI 3856
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2729 of 2018
BETWEEN
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Nguyen Thi Kim |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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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 26 November 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 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
4. The applicant is a citizen of Vietnam. This is her second time entering Hong Kong illegally, the first time being in 2012 and she was repatriated. On 20 October 2015, she came to Hong Kong illegally by boat. On 17 November 2015, she lodged non-refoulement claim with the Immigration Department.
5. The applicant claimed that, if refouled, she would be harmed or killed by her creditor. She had borrowed money from the creditor for the medical expenses of her husband and daughter. Both of them passed away eventually. She was unable to repay the money to the creditor, who brought some people to her house to demand payment and assaulted her. She did not report the assaults to police. She sent her son to somewhere else in Vietnam to avoid the creditor. She moved to her friends’ places. She came to Hong Kong. Details of her story are set out in paragraph 6 of the Director’s Decision described below.
The Director’s Decision
6. The Director considered her application in relation to the following risks:
a. risk of torture under Part VII C 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 7 April 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the risk of her being harmed or killed by her creditor if she returned to Vietnam was assessed to be low [16]; that state protection was available to her [17] and that internal relocation was an option open to her [18]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 5 October 2018.
9. The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. In paragraph 104 and 105 of the Board’s Decision, the Board recorded:
“104. I think the above illustrations given in respect of the Claimant’s evidence would explain why, in my assessment of her credibility, I do not consider the Claimant to be a credible witness and why I do not accept her story to be true in general.
105. For these reasons, I conclude that the claims put forward by the Claimant can be given no credence whatsoever and that she could be regarded, even on the most generous interpretation, not to be a witness of truth.”
Application for leave to apply for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 3 December 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affidavit in support of her application, the applicant simply said that she was unable to pay her debt and her life would be in danger if she returned to Vietnam. She asked for more time to get money from her relatives to pay off the debt. By then, she would return to Vietnam.
DISCUSSION
12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
14. 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.”
15. The Board had cross-examined her evidence and came to its decision as it did in this case. In a nutshell, the Board had rejected her evidence on the facts in support of her claim. She has raised no ground to challenge the Board’s finding of the facts.
16. 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.
17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to grand her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 29th day of December 2021
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(Allen LEE)
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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 29/12/2021
Nguyen Thi Kim
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 29/12/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6847/17/4/123/V1202
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3305/16 (Formerly RBCZ 14324/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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