Case Document

100%Judiciary

HCAL 1839/2018

[2020] HKCFI 1543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1839 of 2018

BETWEEN

	Nguyen Thi Dan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	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;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

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 24 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Leave was granted to the applicant to amend Form 86 by deleting the Board as the respondent and adding the Director of Immigration (“the Director”) as interested party.

The applicant

3.The applicant is a Vietnamese national. She came to Hong Kong on 28 December 2015 illegally through China. She surrendered herself to the Immigration Department. She lodged her non-refoulement claim on 3 March 2017.

4.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by the creditor of her former husband because her former husband was unable to pay the debts.

5.She married her husband without knowing that he had incurred debts from the loan-shark. He was unable to pay. The loan-shark sent people to her home to demand her husband to pay the debts. He was unable to pay. They assaulted him. They came to her home from time to time over 30 times demanding payment of the debts. In 2013, she divorced her husband. In 2015, her former husband returned to live with her without getting married again. The loan-shark also came to her home, telling her that if her former husband was unable to pay the debt, they would kill the whole family. She felt insecure and fled to Hong Kong through China.

The Director’s Decision

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 30 November 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that the level of risks she claimed if she returned to Vietnam was low [10]; state protection was available to her [14]; internal relocation was an option open to her [19] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. The Board, having considered the case of ST v Betty Kwan CACV 115/2013, decided that the assessment could be done on paper.

9.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the evidence and, for the reasons set out in the Board’s Decision, came to the conclusions that she was not subjected to any of the risks as she claimed if she returned to Vietnam. For reasons, see paragraphs 48-60. Internal relocation was an option open to her [61-66]].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 4 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmations in support of her application, she only repeated that she feared that she might be harmed by the loan-shark. She did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

13.The applicant appeared before me. She said that she was treated fairly by the immigration officer and she did not appear before the Board. Her lawyer had explained the Director’s Decision to her and her friend explained to her the Board’s Decision.

14.I put the Board’s findings to her and asked her if she had any comments on them. She said that she agreed with the Board, but she did not want to go back to Vietnam.

15.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.”

16.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

17.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 14^th day of July 2020

	(Mike 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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
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)).		Sent to the Applicant on 14/7/2020 Nguyen Thi Dan Applicant’s ref. no: Nil.		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 14/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9512/17/12/179/V1868 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2926/17 (RBCZ 10987/17) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)