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HCAL 1270/2018
[2021] HKCFI 3447
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1270 of 2018
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Trinh Thi Ly |
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 |
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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 21 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
3. The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing has therefore been fixed for her.
The applicant
4. The applicant is a citizen of Vietnam. She came to Hong Kong illegally on 14 December 2014 and surrendered herself to the Immigration Department on 16 December 2014. She lodged a non-refoulement claim on the same date.
5. The applicant claimed that, if refouled, she would be harmed or killed by her creditors. The applicant confirmed to the immigration officer that she and her family did not belong to any organizations or groups and were never subject to prosecution, detention, arrest or imprisonment in Vietnam. She claimed that she borrowed money from Ying and Thang respectively in 2009 and 2010. As her business failed, she defaulted the payments. From December 2011 to February 2012, the creditors visited her house and demanded for money. They did not attack her because she was pregnant. From March 2012 to December 2014, she was verbally threatened. In these occasions, she did not suffer any injuries. Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 7 of the Director’s Decision described below and paragraphs 6-23 of the Board’s Decision.
The Director’s Decision
6. The Director considered her application in relation to the following risks:
a. risk of torture under Part VII C 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 9 March 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no ground for believing that she would be harmed or killed by her creditors upon refoulement [12]-[15]; that state protection would be available to her [16]-[19] and that internal relocation was an option open to her [20]-[25].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. On 9 May 2018, she appeared before the Board. She confirmed and adopted the evidence in the hearing bundle and gave evidence to supplement her claim.
9. After hearing the evidence and considering the available documents, the Board dismissed her appeal. The Board sought clarifications from her as to several confusing matters, such as documentary evidence to the loans; explanation as to why she did not borrow the loans from the banks; reason for taking out loans from an illegal money lender when she did not seek to expand her business and why she did not leave after she realized that she could not repay: [48]. In the end, the Board refused to accept her explanations. It found that the material aspects of her claim were unsupported by any evidence; that her explanation as to reasons for taking out loans from an illegal money lender rather than the banks was unsatisfactory; that she gave contradictory and inconsistent evidence; that she and her family had never suffered any physical harms from the creditors; that there was no state involvement and that state protection and internal relocation were both available to the applicants [49]-[57]. As a result, the Board found the applicant to be an unreliable witness. For these reasons, the Board dismissed her claim on all applicable grounds [61]-[78].
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 4 July 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant said that she would be in danger if she returned to Vietnam because she is unable to repay her debt.
DISCUSSION
12. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. 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.”
15. The Board has conducted a rather comprehensive assessment of the applicant’s evidence and has given its reasons for its findings. There is no valid reason from the applicant to challenge its Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 22nd day of November 2021
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(K.H. LI) |
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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 22/11/2021
Trinh Thi Ly
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 22/11/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6610/17/3/265/V1107
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 68/17 (Formerly RBCZ 10050/15) [T8S103]
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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