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HCAL 2756/2018
[2021] HKCFI 1999
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2756 of 2018
BETWEEN
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Pham Thi Hoa |
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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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 23 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. On 29 May 2016, she came to Hong Kong illegally. On 31 May 2016, she was arrested by police. On 3 June 2016, she lodged non-refoulement claim with the Immigration Department by written representation.
5. The applicant claimed that, if refouled, she would be harmed or killed by her creditor from whom she had borrowed 100 million Vietnam currency for her pig farm business. She was unable to pay the interest as there was pig plague and the pigs she reared died. Her creditor brought some people armed with wooden stick and long knife to demand payment. She was unable to do so. They vandalized her home and assaulted her. They took her to a public place where they insulted her. She was forced to sign on a document, promising to repay within one month. She had reported the matter to police. But the police did not make investigation into the matter. She was scared and moved to live in her friends’ places. She finally 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 22 March 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed by her creditor if she returned to Vietnam was assessed to be low [12]; that state protection would be available to her [15]; that there was no evidence to show that the state was involved in the incidents [18] and that internal relocation was an option open to her [21]. 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 did not appear before the Board at the scheduled time. Due notice pursuant to Section 15 of Schedule 1A of the Ordinance was given to her by post at her last known address. She did not respond to the letter. The Board therefore proceeded to consider her appeal on paper.
9. The Board, having considered the relevant legal principles on credibility of evidence and after analyzing her evidence [70-102] came to its conclusion at paragraph 107:
“The claimant’s claim relating to her borrowing money for her business was entirely lacking even in the most basic levels of coherence, detail or fundamental credibility. I have no doubt that this aspect of the claim is simply a fabrication and that no credence whatsoever can be given to it. The inconsistencies of the story of the claimant are fatal because the centerpiece could not stand. I consider the claimant’s claim can be given no credence.”
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 4 December 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant repeated her story that she was chased by her creditor in Vietnam and she left Vietnam because she was afraid. She considered that the Board’s Decision was unfair.
DISCUSSION
12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
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 in support of her application do not assist her. They are the facts which the Board had rejected and to say that the Board was unfair is only her opinion without any evidence in support of it. She has not explained why she was absent at the hearing. It was a good chance for her to explain her case to the Board herself.
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 to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 13th day of July 2021
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(M.O. WONG)(Ms) |
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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 13 July 2021
Pham Thi Hoa
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 13 July 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6796/17/4/72/V1186
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 172/17 (Formerly RBCZ 12487/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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