Nguyen Lan Huong and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1660/2018

[2019] HKCFI 3139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1660 of 2018

BETWEEN

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 Applicants:

THE APPLICATION

1.This is the applicants’ application (joint application of mother and daughter) for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

2.This is an ex parte application and the applicants acted in person and they did not request a hearing before the court. The Court, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain to the applicants the purpose of judicial review and to enquire from them if they had had a fair hearing before the Board. The applicants failed to attend the hearing. Their application is now considered on the evidence before this Court.

The applicants

3.The applicants are nationals of Vietnam. They are mother and daughter. They came to Hong Kong illegally on 2 November 2015. They surrendered to the Immigration Department on 4 January 2016. They lodged their non-refoulement claim on 11 May 2016.

4.In support of their claim, they claimed that if refouled, they would be harmed or killed by the creditors in Vietnam since the mother and her husband failed to repay the loan to the creditors. The facts of the mother will cover those of the daughter.

5.The facts relied upon are that money was borrowed from the creditors for the husband’s business on transport services. The business turned bad in 2014 because of financial crisis and territorial claims in South China Sea. The husband was unable to pay the interest and the loan, as a result of which the creditors harassed the family and the incidents are as follows.

a. September 2014: they threatened that they would adduct the children, kill them and burn down the house.

b. They made threats a few times in a month.

c. In mid-September 2015, the creditor came with three men. They demanded to live in the family house. When refused, they threw faeces mixed with tar at the house. Finally, they were allowed to live in.

d. On an occasion, the men attempted to rape the mother. They were stopped by the neighbours. They also assaulted the husband and caused the company to fire him.

e. The men stayed in the house until the end of September. They smoked in the house.

f. The husband had fought with them and had suffered some knife cuts on his body.

g. Because of the harass, the mother and the children had to flee to hide in a jungle where they stayed for eight months.

h. The loan sharks were still looking for them and asked for their whereabouts.

i. They eventually left Vietnam and came to Hong Kong.

The Director’s Decisions

6.The Director considered her application in relation to the following risks:

a. risk of torture under Part VIIC 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 2 September 2016 and another Notice of Further Decision dated 25 July 2017, collectively called (“the Director’s Decisions”) the Director refused their claim for the reason that their claim was not substantiated.

The Board

8.The applicant appealed to the Board. At the Board, the husband was also one of the appellants and they attended a hearing before the Adjudicator on 19 April 2018. Now the husband had not applied for leave to apply for judicial review of the Board’s Decision. This Court will therefore deal with the application of the mother and the daughter. But at the hearing, the Board was able to compare the evidence given by the husband and the mother.

9.By Decision dated 27 June 2018 (“the Board’s Decision”), the Board rejected their appeal and confirmed the Director’s Decisions.

10.The Board had conducted a re-hearing and it had given its reason, saying:

“36. …Although the appellants were interviewed by the respondent, those interviews were brief and no effective attempt was made to test any of the assertions contained in the written statement.

37.     Furthermore, and very significantly, there were absolutely fundamental differences between the accounts given by the first and second appellants … its seems no attempt whatsoever was made to try to reconcile these accounts or to seek explanations as to why the two accounts given were so different. It was clear to me at the outset that it would be necessary for me to question both appellants closely in order to establish the details and facts of their claims and also to attempt to resolve the serious discrepancies that appeared on the face of the record.”

11.The Board considered the applicants’ evidence and, for the reasons set out in the Board’s Decision, came to its conclusion refusing their appeal and confirmed the Director’s Decisions. For the reasons set out in the Board’s Decision in paragraphs 45-50, the Board came to the following conclusion.

“38. …Not only could neither appellant gave a detailed, internally coherent or consistent account of the events each claimed to have experienced in Vietnam, neither could provide any explanation whatsoever for the fundamental differences between their two accounts, despite the fact that they continued to claim they were both describing the same events. Because of this, I have absolutely no doubt whatsoever that all of the claims they have made are inventions and can be given no credence whatsoever.”

Application for leave to apply for Judicial Review

12.In her Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the mother simply said that the Board’s Decision was unfair to her.

DISCUSSION

The Board’s Decision

14.The applicants did not appear before me. I am unable to ask her what happened at the Immigration Department and the Board.

15.Having considered the Board’s Decision, I am satisfied that the Adjudicator had been very prudent in his assessment of the evidence. He had given his reasons for coming to his conclusion. I find nothing amiss in his finding of the facts.

16.It is quite obvious that, apart from some fundamental facts such as the nationality, the Board did not accept the facts as stated by the appellants in support of their claim. Therefore, the applicants had no factual basis for their claim.

17.The applicants fail to show that they have a reasonable prospect of success in their proposed judicial review.

CONCLUSION

18.Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the judicial review. Accordingly, I dismiss their application.

Dated the 27^th day of December 2019

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