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HCAL 1915/2018
[2020] HKCFI 1846
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1915 of 2018
BETWEEN
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Ta Thanh Mai |
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. This is the applicant’s application for leave to apply for judicial review of the Decision dated 25 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant appeared before the Court.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.
The applicant
4. The applicant is a Vietnamese national. She came to Hong Kong illegally on 25 June 2015. On 6 July 2015, she was arrested for staying and working in Hong Kong illegally. She was convicted of the offences and sentenced to 15 months’ imprisonment. On 30 November 2015, she submitted her non-refoulement claim to the Director. She claimed that, if refouled, she would be harmed or killed by her creditor in Vietnam.
5. She claimed that in 2010, she borrowed 300 million Vietnamese currency from a creditor called Thien. She was unable to repay the debt. In 2011, Thien forced her to be a prostitute to earn money for repayment of her debt. In 2012, she carried dangerous drug for Thien and was charged and imprisoned. In 2015, she was discharged and came to Hong Kong. She lodged her claim for non-refoulement. However, at the end of 2016, she returned to Vietnam upon her own application. She lived with her father. In the beginning of 2017, Thien took some people to her home and demanded repayment of the debt. She was unable to pay. They hit her and her father with sticks. Her left leg was broken. They kept her in her home. They asked her to sign a document agreeing to sell her organs for money to repay her debt. She refused to sign. The people took turn to rape her. She was badly injured and her vagina bled. She was forced to sign the document for selling her organs. On 27 February 2017, she and her father took the chance of the guard having drunk and escaped. She did not know her father had gone. She went to get an agent to arrange for her to come to Hong Kong.
The Director’s Decisions
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 12 July 2016 (“the Director’s Decision”), the Director refused her claim on Torture risk, BOR 3 risk and Persecution risk for the reason that her claims were not substantiated.
8. By another Notice of Decision dated 15 June 2017 (“the Director’s Further Decision”), the Director re-assessed her claim and rejected her claim on the above risks and also on BOR 2 risk because she was unable to establish her claim on BOR 2 risk.
The Board’s Decision
9. The applicant appealed to the Board against the Director’s Further Decision and attended a hearing on 22 August 2017. However, she did not give evidence at the hearing [1]. The Board assessed the evidence given to the immigration officer.
10. By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decisions.
11. The Board considered the applicant’s evidence not only on BOR 2 risk, but also on Torture risk, BOR 3 risk and Persecution risk and, for the reasons set out in the Board’s Decision [38-57], came to the conclusion that the risk of harm as she alleged if she returned to Vietnam was low [37]; that state protection would be available to her [58]; that internal relocation was an option open to her [61]; that there was no evidence that the state was involved [70]; that there was no evidence that she would be subjected to BOR 2 risk [74-76] and that there was no evidence to show that Persecution risk existed [82].
12. On the basis of the evidence, the Board did not accept that she would be subjected to any of the risks above.
Application for leave to apply for judicial review
13. The applicant filed Form 86 on 12 September 2018 for leave to apply for judicial review of the Board’s Decision.
14. In her affirmation in support of her application, she did not set out any ground in support of her application, but simply said that the Board’s Decision was not fair. Nor did she say that the Board was in error in coming to its decision.
DISCUSSION
15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 11 above.
16. She confirmed that she had a fair interview with the Immigration officer and a fair hearing before the Board. She had no comments on the Board’s findings.
17. 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.”
18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
19. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
20. Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant leave for her to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 4th 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 4/8/2020
Ta Thanh Mai
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 4/8/2020
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7592/17/6/288/V1491
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1266/16 (formerly RBCZ 14524/15) & QA T/C 1120/17 (formerly RBCZ 15/17)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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