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HCAL 126/2021
[2024] HKCFI 661
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 126 of 2021
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Tran Thi Luyen |
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 Decisiondated 23 December 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 25 October 2023.
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.
4. The Board’s Decision is written in Chinese. However, since the applicant submitted her affirmation in English, I shall prepare Form CALL-1 in English for the applicant’s convenience.
The applicant
5. The applicant, aged 46, is a national of Vietnam. She was arrested by police for staying illegally in Hong Kong. On 1 June 2019, by way of written representation, she lodged her non-refoulement claim on the basis that, if refouled, she will be harmed or killed by her creditor and his subordinates because she was unable to repay her debt.
6. Briefly stated. The applicant and her husband was running a fish farm in Vietnam. In January 2018, she borrowed altogether 300 million Vietnamese currency from a loan shark called Hiep. Because of typhoon and virus, the fish and shrimps were all dead in August 2018. She was therefore unable to pay the interest on her debt. Hiep and his subordinates had gone to her home and threatened to kill her and her family if she did not repay her debt. She had reported to police, which did not take any action at all. She was scared and she moved to Mang Street and worked there in order to avoid Heip. However, she came across Heip on the street twice and he threatened to kill her if she did not repay her debt. In March 2019, she left Vietnam for China. She then went to Shenzhen. On 15 March 2019, she came to Hong Kong illegally by boat. Details of her story are set out in paragraph 6 of the Notice of Decision dated 11 October 2019 (“the Director’s Decision”). She said the state will not be able to protect her as the police there is corrupt. She also said the loan shark is very powerful and he can locate her if she returns to Vietnam.
The Director’s Decision
7. 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”).
8. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) from her experience in Vietnam, the chance of getting harmed from her creditor is low [12]-[15]; (ii) state protection will be available to her upon her return [16]-[21]; and (iii) internal relocation is viable [22-[28].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 16 September 2020, the Board conducted an oral hearing for her with an interpreter.
10. Having considered the applicant’s evidence [44]-[54], the Board came to the conclusion that her creditor did not injure her seriously [48]; that she did not require psychiatric or psychological treatment [48]; that she had not sustained serious pain or injury accorded with BOR 3 risk [49]; that there was no evidence that the state was involved in the incidents [50]; that it was only her speculation that state protection would not be available; and that internal relocation was a viable option [51]. The Board further found that internal relocation would be a viable option [60]–[66].
11. For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
12. The applicant has filed Form 86 dated 4 February 2021 for leave to apply for judicial review of the Board’s Decision.
13. The applicant submitted that she does not agree with the Board’s Decision and she does not want to go back to Vietnam because her life will be in danger there.
DISCUSSION
14. 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).
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant agreed that she might live in somewhere else in Vietnam.
16. 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.”
17. For the reasons given in paragraph 10 above, the Board found that the applicant failed to show that she would be subjected to any real risk as she alleged if she returns to Vietnam. From the evidence, the Board was entitled to form such views.
18. The applicant has raised no valid ground to challenge the Board’s Decision.
19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
20. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 12th day of March 2024
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(M.O. WONG)(Ms)
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 Applicant:
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 12/3/2024
Tran Thi Luyen
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 12/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 16564/19/12/30/V2407
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 620/19 (Formerly RBCZ 10413/19 Pt. 2)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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