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HCAL 227/2019
[2021] HKCFI 3468
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 227 of 2019
BETWEEN
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Nguyen Thi Tuan |
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. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the”Board”) is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
2. The applicant applies for leave to apply for judicial review of the Decision dated 17 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
3. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is therefore dealt with on paper.
The applicant
4. The applicant is a citizen of Vietnam. She last entered Hong Kong illegally on 7 May 2015 and surrendered herself to the Immigration Department on 12 May 2015. On 30 November 2015, she lodged a non-refoulement claim.
5. The applicant claimed that, if refouled, she would be harmed or killed by her creditor Hoang Van Viet (“HVV”), his brother and followers. According to the applicant, she borrowed money from HVV for her farming and breeding business. However, in 2014, because of an epidemic, most of the animals died. She defaulted payments. In November 2014, HVV and his brother came to her house, threatening and demanding for repayment. She was given a month to repay. Feared that she might be killed if she could not repay the debt, she fled to another city. In December 2014, when she returned home to collect her personal belongings, she was attacked by HVV and his brother. She suffered bruises and bone fractures. Eventually, she escaped to Hong Kong for protection. Details of her story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 2-7 of the Board’s Decision.
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 17 February 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no ground for believing that she would be harmed or killed by HVV, his brother or followers upon refoulement [13]-[15]; that state protection would be available to her [16]-[21] and that internal relocation was an option open to her [22]-[28].
The Board’s Decision
8. The applicant appealed against the Director’s Decision to the Board. An oral hearing was held on 29 November 2018, during which the applicant answered the Board’s inquiries.
9. The Board found that the applicant failed to lodge her non-refoulement claim promptly. Such might damage her credibility [24]. After considering the applicant’s evidence, the Board found that she failed to provide substantiated accounts for material aspects of her claim. For example, there was no objective evidence of her alleged business and debt [27]-[31]. Also, there was no medical evidence of her alleged assault [32]-[35]. Further, her claim that the creditor was influential contradicted with her own evidence that she could live in other city free of harm [36]-[39]. As a result, the Board held that there was no credible evidence which supported the applicant’s claim. In any event, state protection and internal relocation to Ho Chi Minh or Hanoi were available to the applicant [52]-[61]; [83]-[92]. For the above reasons, the Board rejected her claim on all applicable grounds [45]-[82] and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 24 January 2019 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant enclosed the Board’s Decision and said that if she was refouled, she would be harmed or killed by her creditor because she was unable to repay the loan.
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. Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.
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. There is no valid reason from the applicant to challenge the Board’s Decision.
16. 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.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 29th day of November 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 29/11/2021
Nguyen Thi Tuan
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 29/11/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6348/17/3/3/V1021
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2952/16 (Formerly RBCZ 14526/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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