PHAM THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS

HCAL 1290/2018

[2021] HKCFI 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1290 of 2018

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

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 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 15 August 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. I shall deal with her application for extension of time for this application below.

3.  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.

The applicant

4.  The applicant is a Vietnamese national. She came to Hong Kong illegally on 22 September 2014. On 24 September 2014, she was arrested and she lodged her non-refoulement claim on 8 October 2014.

5.  The applicant claimed that if refouled, she would be harmed or killed by a person called Bui Van Miet, a loan shark, from whom she had borrowed two loans for her farming business in 2010 and 2012 respectively. There was a plague and her chickens and ducks died. She was unable to repay the debts. The loan shark sent some people to her home and demanded repayment. She was unable to pay. They assaulted her, causing injuries to her body. She then left Vietnam for China, from where she came to Hong Kong. Details of the incidents are set out in paragraph 6 of the Director’s Decision as described below.

The Director’s Decisions

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 28 April 2016 (“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 harm if she returned to Vietnam was low [19]; that state protection was available to her [20] and that internal relocation was an option open to her [25]. By Notice of Further Decision dated 31 October 2016, (“the Director’s Further Decision”), the Director rejected her claim on BOR 2 risk as she was unable to establish a personal and real risk of her absolute and non-derogable rights under the Hong Kong Bill of Rights being violated if she returned to Vietnam. [6]

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and the Director’s Further Decision. She attended the hearing on 9 May 2017.

9.  The Board rejected her appeal and affirmed the Director’s Decision.

10.  The Board considered the applicant’s evidence and found that:

(1)  the applicant’s evidence was inconsistent and contradictory;

(2)  hers was a concocted story and there was no loan shark, loans or assaults as she said; see §§19-43

(3)  there was no evidence that she was injured [51];

(4)  there was no state involvement [52];

(5)  because of the reasons above, the Board rejected her claim on Torture risk [53], BOR 2 risk [55], BOR 3 risk [59] and Persecution risk [63];

(6)  state protection was available to her [64]; and

(7)  internal relocation was an option open to her [71].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 5 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.  She said in her affirmation that she was not satisfied with the Board’s Decision because the Board did not believe her story of being assaulted and threatened by the creditor for several times. Because of those incidents, she had to flee from Vietnam and come to Hong Kong. The adjudicator said that she could relocate herself. But he does not understand her feelings of being assaulted in Vietnam. This is unfair to her.

DISCUSSION

13.  As mentioned in paragraph 2 above, this application is late for 7 months and 3 weeks. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall consider the merits of the applicant’s case.

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. In a nutshell, the Board rejected her evidence on the facts in support of her claim.

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.  The applicant’s grounds in support of her application are her opinions without any evidence or specifics. The Board has given its reasons in support of its findings. See paragraphs 19-43 of the Board’s Decision.

17.  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.

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

CONCLUSION

19.  I refuse to extend time for her application for leave 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