Le Anh Hong v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1888/2018

[2020] HKCFI 1548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1888 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 27 August 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 Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) as proposed respondent and by adding the Director as interested party.

The applicant

3.The applicant is a Vietnamese national. She came to Hong Kong on 16 June 2015 illegally. She surrendered herself to the Immigration Department on 23 July 2015. She lodged her non-refoulement claim on 20 March 2017.

4.In support of her claim, she said that if refouled, she would be harmed or killed by the family members of a defendant in a case, in which she was the witness.

5.The applicant claimed that between 1990 and 2015, she opened a small café shop. In 2015, she had a patron who came to her shop every morning and they were acquainted. One day, this patron brought a big parcel and asked her to permit him to leave it in her shop. She agreed. Later on the same day, he brought another person to her shop and asked for the big parcel back. He took the big parcel to the man. She saw that the parcel contained cash. They then left her shop. The next day, her patron and the men were brought back to her shop by some police officers, who asked her whether or not the patron had left his big parcel containing cash in her shop. She said in the affirmative. The police officers then took the patron and the other away.

6.The police officers asked her to be the witness for the court case. She refused. However, some people, whom she believed to be the patron’s family members came to her shop with sticks and iron rods. They vandalized her shop. She was assaulted too. Her right hand was put on the table to be stepped on by another person. This broke her hand. She had to received medical treatment. It took a month for her recover. One day when she was jogging on the street, a car drove past her, causing her to fall on the ground. The driver was drunk. She thought he was a family member of her patron. She considered that her patron’s family members would find her and harm her. She therefore decided to come to Hong Kong. She learned that her patron had been sentenced to life imprisonment in Vietnam.

The Director’s Decision

7.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”).

8.By Notice of Decision dated 27 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 risk as 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 [18] and the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and attended a hearing on a date, which is not found in the Board’s Decision. The Board said that the Adjudicator had considered the oral evidence [29].

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

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, found as fact that there was no reliable evidence to show the existence of the incidents as claimed by the applicant [31]; that if the patron’s family members wanted to harm her, they should have plenty of opportunities to do so [32]; that the applicant, being in a very stable and sensible mind, the Board found that the harm, actual and perceived from the family members of the patron was not imminent and ill‑treatment on her had not attained a minimum level of severity, the future risk being speculative only. It further found that there was no evidence to show that the patron and his family members were public officials or acting in any official capacity and that the government was not involved in the dispute, the incident being a private dispute between the patron and the applicant only [35]. See also §§48-57. The Board also found that internal relocation was an option open to the applicant [88].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, she said that her life would be in danger if she returned to Vietnam.

DISCUSSION

14.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. The interpreter of the Board had explained to her the Board’s Decision. She had no comments on the Board’s Decision.

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.There is nothing to show that the Board had committed any error in its application of the law to her case or in coming to its conclusions on the facts of the case.

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 15^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

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