NGUYEN THI THUY AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1764/2018

[2020] HKCFI 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1764 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.  The first and the second applicants are wife and husband; the third and the fourth applicants are their sons.  This is the applicants’ joint application for leave to apply for judicial review of the Decision dated 21 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”), which refused their appeal against the Decision dated 21 February 2018 of Director of Immigration (the “Director’s Decision”), which rejected their non-refoulement claim.

2.  The applicants are not legally represented and they did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicants to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicants attended the hearing on 27 November 2019.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court (“RHC”), Form 86 was amended by deleting Director of Immigration as the respondent and adding the Director as the interested party.

The applicants

4.  The applicants are Vietnamese national. They are illegal immigrants. On 29 April 2015, the applicants came to Hong Kong as visitors. They overstayed. The mother and the sons were arrested on 18 May 2015. By written representations, they raised their non‑refoulement claim. The husband surrendered to the Immigration Department on 15 June 2015. He also raised non-refoulement claim by written representations.

5.  The wife and the husband claimed that if the family returned to Vietnam, they would be harmed or killed by their creditors because they were unable to pay their debts.

6.  The wife and the husband set up their business of selling clothes. The wife borrowed altogether 4.5 billion Vietnam currency from ten creditors between 2007 and 2015. The business ran well. However, in 2014, the husband joined a protest against China for exploiting oil and gas in Vietnam territories. He was arrested by police and was forbidden to leave Vietnam for three months. He was, therefore, unable to buy goods from China. The business ran down quickly and she was unable to repay the interest and the loans. The creditors came to their shop demanding payment of interest and repayment of the debts. They were under immense stress, as a result of which the wife was ill and had to consult doctor. There were two occasions where the husband was riding bicycle taking his sons back home after school, there were masked people riding another bicycle and hit his bicycle. They fell from the bicycle and sustained injury.

7.  In 2015, the family joined a tour for Hong Kong. Whilst in Disney Lands, they were separated from each other. They stayed in Hong Kong separately without joining the same tour to go back to Vietnam. Later, they managed to meet each other. They decided not to return and stayed in Hong Kong as they were told that the creditors were still looking for them.

The Director’s Decision

8.  The Director considered their joint 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”).

9.  By Notice of Decision, the Director refused their claim for the reason that their claim was not substantiated. The Director took the view that the risk of harm, if refouled, was low [14]; that state protection was available to them [19] and internal relocation was an option open to them [22].

The Board’s Decision

10.  The applicants appealed to the Board and appeared before the Adjudicator.

11.  By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decision.

12.  The Board considered the applicants’ evidence and it cast doubt on the credibility of the issues of the tour, the second applicant’s disappearance and re-appearance, the fashion business and the traffic incidents [39]. It found that the state was not involved [48]; that the applicants did not suffer serious injury or serious harm within the context of BOR 3 risk [59]; that BOR 2 risk was not established [62] and Persecution risk was not established [71]. Besides, internal relocation was an option open to them [72-76].

Application for leave to apply for judicial review

13.  The applicants filed Form 86 dated 28 August 2018 for leave to apply for judicial review of the Board’s Decision.

14.  They simply repeated that they would be harmed or killed by the creditors. They did not set out any reasons in their affirmation to show where the Board’s Decision was wrong.

DISCUSSION

15.  The applicants appeared before me and they confirmed that they were treated fairly when they appeared before the immigration officer and the Adjudicator of the Board.

16.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

17.  The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

18.  Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their 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