Dang Thi Thu v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1396/2018

[2021] HKCFI 845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1396 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 in November 2012. On 15 February 2014, she was arrested by the Immigration Department. On 24 March 2014, she lodged her non-refoulement claim with the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she was unable to pay off her debt.  She borrowed five billion Vietnamese currency from the creditor for her gambling.  She was unable to repay her debt.  She sold her piece of land as partial repayment.  However, in February and April, 2012, the creditor sent some people to her home to demand repayment.  She had no money and they assaulted her with hand and knife.  As a result, she was injured. She had complained to police.  They did not make investigation into the matter.  She was scared and she heard that Hong Kong was a safe place.  She came to Hong Kong in 2012.  Details of the incidents are set out in paragraph 9 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 14 December 2016 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of being harmed or killed if she returned to Vietnam was low [13]; that state protection would be available to her [16] and that internal relocation was an option open to her [21]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. She appeared before the Board on 9 May 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons as set out below.

(1)   She gave inconsistent evidence to the immigration officer and the Board and she was unable to explain such inconsistencies. [29]

(2)   The Board found that she was not a truthful witness. [30]

(3)   The Board found that her oral evidence before it was not credible. [32]

(4)   The Board also gave no weight to her evidence before the immigration officer. [38]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 16 July 2018 for leave to apply for judicial review of the Board’s Decision.  She said in her affirmation that if she returned to Vietnam, she would be killed by her creditor and his men because she was unable to pay back her debt.

DISCUSSION

11.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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.As the Board had rejected her evidence, she has no factual basis in support of her claim. Her grounds in support of this application does not assist her.

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 1^st day of April 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