Vu Thi Thuy Hang v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1244/2018

[2021] HKCFI 491

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1244 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions 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.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, 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.

2.The applicant applies for leave to apply for judicial review of the Decision dated 19 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.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.

The applicant

4.The applicant is a Vietnamese national. She came to Hong Kong illegally on 23 March 2015. She surrendered to the Immigration Department on 26 May 2015. She lodged her non-refoulement claim on 26 May 2015.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she had borrowed a loan from a money-lender for her business together with her husband on trading coal in 2012. The business failed and she was unable to repay even the interest on the loan. The money-lender came to her house for repayment from time to time. But she was not injured. In May 2015, she decided to come to Hong Kong. Details of the incidents are contained in paragraph 7 of the Director’s Decision as described below.

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 the level of risk of harm she would face was assessed to be low [11]; that state protection would be available to her [14] and that internal relocation alternatives were available to her and were reasonable. [17]

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 14 March 2018.

9.The Board rejected her appeal and affirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and set out its reasons below.

(1)   There were inconsistencies and implausibility in her evidence and she had not proved the primary facts on the Loan and the threats in support of her claim. [31]

(2)   State protection was available to her. [34]

(3)   Internal relocation was available to her. [64]

(4)   For the reasons above, the Board rejected her claim on Torture risk [47], BOR 3 risk [55], BOR 2 risk [57] and Persecution risk [59].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that if she returned to her country, she would be inflicted with more serious harm.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. In a nutshell, the Board rejected her evidence on the facts in support of her claim. See paragraph 10 above.

13.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.”

14.The applicant’s ground in support of her application is her opinion without any evidence or specifics. It does not assist her application.

15.The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational

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

CONCLUSION

17.I refuse her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 2^nd day of March 2021

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