Case Document

100%Judiciary

HCAL 1398/2018

[2021] HKCFI 846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1398 OF 2018

BETWEEN

	Tran Thi Dan	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 13 July 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 21 August 2014. She surrendered to the Immigration Department on 25 August 2014. On the same day, 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 repay the money she had borrowed from the creditor. In 2013, she borrowed the money for the purchase of a fishing boat. Her husband ran the fishing business. However, the business turned out to be unsuccessful. They had to sell the fishing boat for partial payment of the debt. Her husband worked elsewhere. The creditor sent a fierce man to collect the debt. He threatened that if she could not repay the money, she would be assaulted. She learned from her neighbour that Hong Kong would assist asylum seekers. She therefore came to Hong Kong. Details of the incidents are set out in paragraph 6 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 July 2016 (“the Director’s Decision”), the Director refused her claim on Torture risk, BOR 3 risk and Persecution risk for the reason that it was not substantiated. The Director found that the risk of her being harmed by the creditor if she returned to Vietnam was assessed to be low [12]; that state protection would be available to her [13] and that internal relocation was an option open to her [19]. Based upon the finding of the facts, the Director rejected her claim on the above risks.

8.By Notice of Further Decision dated 23 March 2017 (“the Director’s Further Decision”), the Director rejected her claim on BOR 2 risk because she was unable to establish a personal and real risk of her right under the Hong Kong Bill of Rights being violated upon her return to Vietnam. [6]

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and she appeared before the Board on 29 December 2017.

10.Having considered her evidence, the Board rejected her appeal and affirmed the Director’s Decision and Further Decision on the reasons below.

(1)   The Board did not accept her evidence on the facts of her case and concluded that her story was fabricated. [17]

(2)   If she returned to Vietnam, the state could provide protection for her. [19]

(3)   Internal relocation was an option open to her. [36]

(4)   Based upon the above reasons, the Board reject her claim on the Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk.

Application for leave to apply for judicial review

11.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 seriously harmed by her creditor and his subordinates. She had told the Board about these but the Board did not believe and this was unfair to her.

DISCUSSION

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

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 Board had rejected her evidence on the facts. She therefore has no factual basis in support of her claim. Her reasons in support of this application do 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 7^th day of April 2021

	(M. O. WONG)(Ms)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 7 April 2021 Tran Thi Dan Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 7 April 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4201/16/7/171/V265 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 931/16 & RBCZ 9000541/17 (Formerly RBCZ 2864/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)