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HCAL 1442/2018
[2021] HKCFI 3414
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1442 of 2018
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Do Thi Nguyet |
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 11 July 2018 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”), the Court will 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 Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
The applicant
4. The applicant is a citizen of Vietnam. She entered Hong Kong illegally on 12 December 2013 and was arrested on 18 March 2014. She lodged a non-refoulement claim on 29 May 2014.
5. The applicant claimed that, if refouled, she would be harmed or killed by her creditor Manh. In 2005, she borrowed 500 million VND from Manh for her clothing business. In 2006, her business went downhill and she was unable to repay the loan. In 2007, the creditor visited her house to demand for repayment. He gave her extensions to collect the money and, if she failed to do so, she should help him trafficking drugs. In September 2007, she was arrested by the local police for drug trafficking and sentenced to 30 months’ imprisonment. Upon her release from prison, she was chased and threatened again by the creditor. Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 7-19 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 6 April 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 creditor if she returned to Vietnam [11]-[15]; that state protection would be available to her [16]-[18] and that internal relocation was an option open to her [20]-[29].
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. After considering the available evidence, the Board decided not to hold an oral hearing and proceeded to consider the appeal on paper [3].
9. The Board found that, from the applicant’s own evidence on the creditor’s manner in demanding the repayment, it showed that the creditor did not intend to harm or kill her. Instead, he simply aimed for repayment of the loan and/or forcing the applicant to traffic drugs for him. The Board found that the loan between the applicant and the creditor and the threats and coercion from the creditor were private in nature without state involvement [24]-[27]. Further, it was the applicant’s pure speculation that she would not be protected by the government or local police and such speculation contradicted with the country of origin information [28]-[39]. In any event, internal relocation was available to the applicant [52]-[55]. For the above reasons, the Board dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 23 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 did not agree with the Board. She would be harmed or killed if she returned to Vietnam. She complained that the Board did not believe her evidence.
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 Decisions 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. 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 30th day of November 2021
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(M.O. WONG)(Ms) |
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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 30 November 2021
Do Thi Nguyet
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 30 November 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6803/17/4/79/V1189
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 237/17 (Formerly RBCZ/3001258/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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