HA THI PHUONG THAO v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1303/2020

[2024] HKCFI 3662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1303 of 2020

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

1.  Leave to the applicant to withdraw the Leave Application; and

2.  The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 26 June 2020, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 16 June 2020 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision dated 8 November 2019 (“Director’s Decision”) of the Director of Immigration (“Director”), who refused the applicant’s claim for non-refoulement protection.

2.  It should be mentioned that the Director’s Decision is in the Chinese language. However, as the Board’s Decision and the Form 86 together with the supporting affirmation were both prepared in English, I consider that it is appropriate to render the decision in the Form CALL-1 in English. Accordingly, the order will also be drawn up in English.

Background

3.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

4.  The applicant came from Vietnam. She informed the Immigration Department that she arrived in Hong Kong on 1 June 2019 illegally via Mainland China. On 5 June 2019, she was arrested by police who transferred her to the Immigration Department. On 4 August 2019, she lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by her husband if she was refouled.

5.  The Director decided against the applicant’s claim on all applicable grounds. It was the applicant’s case that she was the victim of domestic violence inflicted by her unemployed husband back home. The applicant had in fact previously came to Hong Kong illegally on 10 November 2018 via Mainland China. When a removal order was issued against her on 18 December 2018, she requested to be sent back to Vietnam without raising any refoulement claim. The Director considered that the applicant’s failure to raise the refoulement claim in 2018 undermined her credibility of the claim. The applicant’s given reason for her request for voluntary repatriation in 2018 on the ground of her having missed her children was rejected by the Director. Having considered the past ill-treatments from the husband, the Director found that the risks of the applicant being subjected to future physical or psychological threats were low. The Director further found that services for the protection of women against domestic violence in Vietnam were available. It was further concluded that internal relocation was also reasonably viable. Hence, the applicant’s appeal to the Board.

6.  On 8 April 2020, the applicant attended a hearing before the Board. After the applicant’s rights were explained to her at the hearing, the applicant answered questions raised by the Board. The Board found that the applicant’s evidence incredible, and did not accept that the applicant had been subjected to threats or violence as she described. The Board found that both state protection and internal relocation were also reasonably available. The Board therefore found that she failed to establish her case.

Legal principles applicable to judicial review

7.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

8.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she did not provide any grounds in support of the Leave Application.

9.  Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant’s evidence was not credible and that the applicant failed to discharge her burden of proving the asserted fears and risks.

10.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The Leave Application is accordingly dismissed.

Withdrawal of Leave Application

11.  On 21 October 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that she wanted to go back to Vietnam.

12.  Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Orders

13.  Leave to the applicant to withdraw the Leave Application.

14.  The Leave Application be dismissed.

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