LE THANH XUAN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1548/2019

[2020] HKCFI 2106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1548 of 2019

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a national of Vietnam who entered Hong Kong illegally on 15 November 2015 and surrendered to the Immigration Department on 17 November 2015 when she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditors for failing to repay her loans.      

2.  By a Notice of Decision dated 18 April 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditors upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that her problems with her creditors were private monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Vietnam with a large population of 93.67 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Vietnam away from her home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for her creditors to locate her.

4.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 7 March 2019 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 24 May 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 5 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge.

6.  However, before her application could be dealt with by the court, the Applicant on 11 August 2020 filed an affirmation requesting to withdraw her application as her problem with debt has been solved by her family and that it would be safe for her to go back to Vietnam.

7.  In the premises and as the basis for her claim no longer exists, it would be appropriate for her application to be dismissed rather than withdrawn.  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