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HCAL 1013/2017
[2018] HKCFI 2282
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1013 of 2017
BETWEEN
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Luong Thi Dan |
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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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 The Honourable Mrs Justice Campbell-Moffat:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Procedural history
1. The Applicant entered Hong Kong legally on 8 March 2005 from Vietnam and was arrested by the police on 5 January 2006 for overstaying. She was repatriated to Vietnam on 18 January 2006. She re-entered illegally in February 2014 and was arrested by the police on 9 January 2015 for illegally remaining. The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 15 and 19 January 2015. She was released upon recognisance on 12 March 2015. Her NRF claim form was submitted on 7 October 2015.
2. The Applicant attended a screening interview on 3 December 2015 and submitted a letter thereafter dated 12 January 2016, which was also considered. The Director of Immigration (“the Director”) dismissed her claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 14 January 2016 and by Notice of Further Decision (re BOR 2) on 4 January 2017. She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Mr Wesley Wong (“the Adjudicator”), heard her on 24 August 2017. The Adjudicator considered her appeal on all applicable grounds including BOR 2. The Adjudicator refused her appeal on 13 September 2017.
3. The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 5 December 2017 and did not request an oral hearing. The matter was therefore considered on the papers.
Background
4. The Applicant is a Vietnamese national. She was born on 8 November 1965 in Hai Phong City. She is married with two sons who are currently in Hong Kong. Prior to coming to Hong Kong the Applicant was a housewife. Her claim arises out of her fear that she will be harmed by the Vietnamese authorities because her two sons evaded military service by continuing their education and deferring service. Thereafter, they were required to complete compulsory re-education for a period equivalent to compulsory military service which is three years. At the end of his studies, the Applicant’s elder son was taken for re-education. After a month, the young man escaped because he had been badly treated but did not return home. The relevant authorities naturally sought to discover his whereabouts from the Applicant. Fearing her son would come to more harm if he were to return, the Applicant denied being able to contact him. The Applicant was told that she was therefore liable to a fine of 50 million Dhong and would be required to attend re-education in his place. The Applicant was poor and did not feel she could complain to the police or bribe the police to help her. Her lack of assistance resulted in some degree of local prejudice but she was not harmed in any way. Nevertheless, she felt under the threat of arrest and therefore she left and went to Mong Cai in 2014 and remained there for a short time before she arranged to cross the border into China and then come illegally to Hong Kong. The Applicant did approach the UNHCR in 2014 but did not follow it up and was eventually arrested in January 2015. Her younger son followed her to Hong Kong in 2014. Her husband and two sons are now in Hong Kong.
The non-refoulement claim
5. Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:
i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the Applicant must establish she has substantial grounds for believing she will be subjected to torture if returned to her home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.
ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the Applicant must establish that she has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to her home state. The level of such mental or physical torture etc. must reach a minimum level of severity.
iii. 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”). Under “persecution risk”, the Applicant must establish that she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her home state.
iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the Applicant must establish a real risk that she will be arbitrarily deprived of her life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.
6. It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of her claim. The Director and Adjudicator must then assess the level of harm the Applicant says she fears. Each ground of claim above has a relevant level of risk. It is for the Applicant to establish that she is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.
Decision and further decision of the Director
7. As the Applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with by the Board.
Decision of the Adjudicator
8. The Adjudicator analysed the Applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. He correctly set out the law and key legal principles including the burden and standard of proof. He explained the procedure to be adopted and gave the Applicant an opportunity to expand upon her claim. Having heard her, the Adjudicator was sceptical about her case. He noted that she had originally overstayed in Hong Kong in 2005 and had she not been arrested, she would have continued to do so. She had a passport which would have gained her valid entry into Hong Kong in 2014 but had chosen not to do so and so had evaded the authorities until January 2015. Despite maintaining that she had come to Hong Kong to seek protection, she did not lodge a claim until after her arrest. He also noted that she was a well-educated lady who was capable of, and had, stood up to the authorities when they sought her elder son. She had not been harmed in any way and had only minor inconvenience as a result of her lack of cooperation.
Leave to apply for judicial review
9. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.
Grounds of review
10. There were no grounds of review. The Applicant asks for a re-hearing of her appeal. She has not complained of any procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of her intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.
Conclusion
11. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. Given that the whole family is now here in Hong Kong and the basis of their individual claims is different, it would appear that the Adjudicator had reasonably found that the reason for her presence in Hong Kong was not to seek protection from the Vietnamese statement but to seek re location to Hong Kong with her family. There is therefore no criticism of his determination, which was open to him on the facts and eminently reasonable.
12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave. I therefore refuse leave for judicial review.
Dated 11th day of December 2018.
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(Ms Queenie Mak)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his 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 11/12/2018
Luong Thi Dan
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 11/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3007/16/1/130/V126
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001181/16 (formerly RBCZ 10455/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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