NGUYEN THI NGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 701/2019

[2022] HKCFI 2772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 701 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

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 March 2019 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 national of Vietnam.  She entered Hong Kong illegally on 29 September 2014 and surrendered to the Immigration Department on 3 November 2014.  On the date of surrender, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the Vietnamese police because of her involvement in a protest. 

5.  According to the applicant, in May 2014, she was required by some unknown Vietnamese men to participate in a protest against the Chinese government.  She attended the protest.  The protest was later dispersed by the local police and some participants were arrested.  Out of fear, the applicant escaped to another village.  She learnt that some local police visited her house.  Eventually, she decided to flee to Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 21 February 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director rejected the applicant’s claim for the reason that the alleged risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) there was no evidence of the applicant sustaining injuries that attained a minimum level of severity and no evidence showing that the local police intended to harm or kill her despite the visits [13]-[14]; (ii) it was only her speculation that state protection would not be available to her as there was no evidence that police would arrest her; and even if police were going to arrest her, there was no evidence to show that the police officers would not carry out their duties in accordance with the law and therefore, state protection would be available to her [16]-[19]; and (iii) internal relocation was a viable alternative because there was no evidence to show that police were going to arrest her. They only looked for her for investigation of the protest only [20]-[25].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 24 January 2019, the Board conducted an oral hearing for her appeal. 

9.  Having considered the documents and the evidence, the Board made the following findings.  The Board found that the applicant was never injured by the local police [51]; that, even taking her claim to the highest, there was insufficient evidence to substantiate an assertion that she would suffer any ill-treatments as there was no evidence that she was criminally charged [52]-[57]; that state protection was available to the applicant [60]-[66].  As a result, the Board rejected her claim on Persecution risk.  For the same reasons, her claim on BOR 2 risk, BOR 3 risk and Torture risk was also rejected.  In any event, the Board found that internal relocation was not unduly harsh for the applicant [88]-[95].        

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant said that her claim is genuine and substantiated.

DISCUSSION

13.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  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.”

16.  There is no valid reason to challenge the Board’s Decision.

17.  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.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

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