DINH THI QUYEN v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2879/2018

[2020] HKCFI 1866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2879 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 Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 13 December 2018 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 was 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 Vietnamese national.  She came to Hong Kong illegally on 30 August 2015.  She surrendered to the Immigration Department.  On 31 August 2015, she submitted a written representation to lodge a non‑refoulement claim.

5.  The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she was unable to pay off her loans.  She had borrowed money from a loan‑shark for her business with her husband.  The business was not profitable and she was unable to repay the money.  On two occasions she saw the creditor’s people coming to her house.  She fled and moved to live in his relatives’ places.  Finally, she came to Hong Kong.  For details, see paragraph 6 of the Director’s Decision.

The Director’s Decision

6.  The Director considered her 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”).

7.  By Notice of Decision dated 28 March 2017 (“the Director’s Decision”), the Director refused her claim for the reason that the level of risk that she would be harmed upon her return to Vietnam would be low [11]; that state protection was available to her [15] and that internal relocation was an option open to her [16].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and attended the hearing on 15 November 2018.

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

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

a.her evidence that she had borrowed loans from the loan‑sharked for her business was not accepted [9-20];

b.even if her evidence were accepted, she did not have the real and genuine risk of being harmed or killed if she returned to Vietnam in view of her alertness in Vietnam [21];

c.state protection was available to her [25]; and

d.internal relocation was an option open to her [42].

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Decision.  In her affirmation in support of her application, she repeated her fear of being harmed by the creditor and asked for more time to stay in Hong Kong so that her family in Vietnam may save money to repay her debts.

DISCUSSION

12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.  See paragraph 10 above.

13.  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.”

14.  The reasons she put forth for her application do not support her application.

15.  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.

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

CONCLUSION

17.  I refuse 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