Dinh Thi Dem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1283/2018

[2021] HKCFI 528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1283 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.It is apparent that the applicant applies for leave to apply for judicial review of the Decision dated 14 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The applicant has put down the date of the Board’s Decision as 28 February 2018. It is a typo, which should be amended accordingly.

2.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.  Form 86 is further amended that the Board’s Decision should be 14 May 2018 instead of 28 February 2018.

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 citizen of Vietnam.  She came to Hong Kong illegally on 14 March 2016 and surrendered to the Immigration Department on 15 March 2016.  On the same day, she lodged her non-refoulement claim.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor called Uyen.  In 2010, she borrowed a loan of 500 million Vietnam currency from her for her business of seafood.  In 2014, she was unable to pay the interest.  In 2015, she had to close down her business.  Uyen and another fierce man came to her stall and demanded repayment of the loan.  Uyen had slapped her face, which became swollen.  Uyen further threatened her that if she could not repay the loan, she had to traffic dangerous drugs for her or she would break her leg and kill her.  She did not see a doctor.  Nor did she report the matter to police.  With the assistance of her friend, she left Vietnam for Hong Kong.  The details of the incidents are contained in paragraph 8 of the Director’s Decision 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 17 October 2016 (“the Director’s Decision”), the Director refused her claim for the reason that her alleged risks were assessed to be low and unlikely to materialize [12]; that state protection would be available to her [13] and that internal relocation was an option open to her [18].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 23 April 2018.

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

10.The Board considered the applicant’s evidence and found that:

(1)  the applicant concocted her story, which was inconsistent and unbelievable [42];

(2)  there was no state involvement in this matter [51];

(3)  because of non-acceptance of her evidence on the facts of the case, the Board rejected her claim on Torture risk [52], BOR 2 risk [54], BOR 3 risk [58] and Persecution risk [62];

(4)  state protection would be available to her [64]; and

(5)  internal relocation was an option open to her [70].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 4 July 2018 for leave to apply for judicial review of the Board’s Decision.  She said in her affirmation that she wanted to stay in Hong Kong.  If she returned to Vietnam, her life would be in danger.

12.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.”

13.The applicant’s ground in support of her application does not support her application.

14.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.

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

CONCLUSION

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

Dated the 8^th 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