Cao Thi Sinh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1845/2018

[2020] HKCFI 1589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1845 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 Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 3 September 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 Director of Immigration (“the Director”) as respondent and adding the Director as interested party.

The applicant

3.The applicant is a Vietnamese national. She came to Hong Kong on 20 May 2015 illegally and was arrested by police on 10 June 2015. She lodged her non-refoulement claim on 15 June 2015. She had come to Hong Kong illegally and was removed for three times. This is her fourth attempt to stay in Hong Kong.

4.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by a loan shark named Tran Van Yen.

5.The applicant claimed that she was married with a son. She had borrowed 500 million Vietnam Dong from Tran. The money was for her plantation of flowers business. The business did not make profit because of typhoons. She could not even pay the interest. Tran brought with him 8-9 people to her home. They were armed with swords and knives. They attacked her and her husband. She had wound cuts in her hand and her husband had wound cut on his calf. The loan-shark people disbursed when the neighbours intervened. The loan shark made threatening phone calls to her. They then set fire on the applicant’s home. As a result, her house was burnt down. They had to set up a tent on the site and lived in the tent for a few months. However, she received numerous threatening telephones calls from Tran. She decided to leave Vietnam for Hong Kong.

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 27 January 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 risk as she claimed if she returned to Vietnam was low [42]; state protection was available to her [48]; internal relocation was an option open to her [49] 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 and attended the hearing on 27 June 2018.

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

10.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it did not accept that the applicant had borrowed money from Tran and it was a fabrication and that her story of ill treatment and harm from the moneylender were also fabrications and untrue [125]; that state protection was available to her [133] and internal relocation was an option open to her [149].

Application for leave to apply for judicial review

11.The applicant filed Form 86 dated 5 September 2018 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, 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. She simply repeated that she had a genuine and substantial risk of being tortured if she returned to Vietnam.

DISCUSSION

13.The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and she could understand the Board’s Decision herself.

14.I put the Board’s findings to her and asked her if she had any comments on them. She said that she would not be able to relocate herself in Vietnam because she could not obtain the paper from the authority.

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.Her reasons and comment on relocation do not assist her because they are the facts of her case. The Board had considered the facts and come to its own conclusions. The applicant has not given me any reasons to interfere with the Board’s Decision.

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

CONCLUSION

18.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

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