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HCAL 1442/2019
[2024] HKCFI 713
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1442 of 2019
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Duong Thi Thu Huong |
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. The applicant applies for leave to apply for judicial review of the Decision dated 9 May 2019 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”), I shall deal with her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant, aged 48, is a Vietnamese. She entered Hong Kong illegally on 8 August 2015 and lodged a non-refoulement claim on 13 August 2015. The claim was made on the basis that, if refouled, the applicant would be ill-treated or even killed by her creditor, Madam Nguyen Hong Yun (“Madam Nguyen”) because she failed to repay the loan.
5. According to the applicant, she borrowed money from Madam Nguyen in or around mid-2013 to invest in a health supplement manufacturing plant. The plant she invested in had never arrived and she failed to recoup her investment. Since early 2014, Madam Nguyen and her followers started to come to her shop every few days demanding repayments and making troubles. The applicant had been assaulted two or three times, but she did not seek medical treatment nor report to the police. One day in July 2015, upon receiving news from her employee that Madam Nguyen and her followers threatened to kill her and her daughter, she left her hometown with her daughter and lived with her friend. Eventually she gave her daughter to her younger sister to take care of and she sneaked into Hong Kong illegally on 8 August 2015.
6. The applicant maintained contact with her friend and younger sister after arrival in Hong Kong until August 2017. She was informed that Madam Nguyen was still asking for her whereabouts and threatened to harm her daughter.
7. The applicant was of the view that she could not seek protection from the police because they were corrupt and she had no money to bribe them. She also thought the police would not bother handling a private debt dispute. She considered relocating to other places within Vietnam not viable as well because Madam Nguyen could still easily locate her.
8. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 11 September 2017 (“the Director’s Decision”).
The Director’s Decision
9. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).
10. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment from Madam Nguyen is indicative of low future risk of harm upon her return to Vietnam [12]-[14]; (ii) state protection will be available to her upon her return [16]-[22]; (iii) internal relocation is viable [15], [23]-[28] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2, BOR 3 risk [29]-[34], Persecution risk [35]-[40] or Torture risk [41]-[44].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 11 April 2019, the Board conducted an oral hearing.
12. Having considered the applicant’s evidence, the Board found her unreliable and dishonest and the Board rejected her factual evidence in support of her claim [36]-[38]. The Board found that the applicant’s case failed to meet any of the requirement under Torture risk [25]-[28], [39]-[47], [50]-[51], BOR 2 and BOR 3 risk [52]-[58] or Persecution risk [59]-[67]. Furthermore, state protection and internal relocation were also available to the applicant [48]-[49], [68]-[72].
13. For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.
Application for leave to apply for judicial review of the Board’s Decision
14. The applicant has filed Form 86 dated 28 May 2019 for leave to apply for judicial review of the Board’s Decision.
15. In the applicant’s affirmation in support of her application, she repeated her reasons for coming to Hong Kong and that she is unable to repay her debt. She did not raised any specific ground to challenge the Board’s Decision.
DISCUSSION
16. 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
17. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
18. 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.”
19. As the applicant has failed to raise any valid reason to challenge the Board’s Decision, there is no reason that the Court should interfere with the Board’s Decision.
20. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
21. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated 7th day of March 2024.
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(Allen LEE)
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 Applicants:
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 7/3/2024
Duong Thi Thu Huong
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 7/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8608/17/9/280/V1698
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1835/17 (Formerly RBCZ 12818/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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