Case Document

100%Judiciary

HCAL 2688/2018

[2021] HKCFI 1316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2688 of 2018

BETWEEN

	Nguyen Thi Chung	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 documents only; or

consideration of documents and Applicant being absent 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.The applicant applies for leave to apply for judicial review of the Decision dated 18 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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.

3.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.

The applicant

4.The applicant is a citizen of Vietnam. She had come to Hong Kong illegally on a number of occasions. She was arrested, convicted, sentenced and repatriated. The last time she came was on 10 October 2014. She surrendered to the Immigration Department. She lodged her non-refoulement claim with the Immigration Department by written representation dated 20 October 2014.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor from whom she had borrowed money for the medical expenses of her husband. She also claimed that she would be harmed by her husband, who is a drunkard. Her relationship with her husband was bad, who always assaulted her when he was drunk. She was hit unconscious from time to time. She did not divorce him because he threatened her that if she did, he would blow up the house with bomb and die with her and their children together. In 2012, her husband was injured as he was riding a motorbike whilst he was drunk and hit against a pile of rocks on the roadside. He had a blood clot in his brain and needed an operation, which was expensive. She therefore had to borrow 500 million VND from the creditor, Le, for the medical expenses. She was unable to pay off the loan. Le came to her home and demanded payment. Her husband was unhappy about it and he blamed her for borrowing money from Le. Le threatened her that if she was unable to pay off the loan, she had to work as a drug trafficker for him or she would be killed. In October 2014, she decided to leave Vietnam for Hong Kong. Details of her story are set out 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 23 January 2017 (“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 her being harmed or killed by her creditor or her husband if she returned to Vietnam was assessed to be low [16]; that state protection would be available to her [19] and that internal relocation was an option open to her [27]. 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 4 September 2017.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons that:

(1) it had taken into consideration of her previous history of coming to Hong Kong illegally and her intention of staying in Hong Kong for a long period of time [78];

(2) her evidence was inconsistent and inherently implausible under the circumstances she described and it came to the conclusion that her story of borrowing money from the creditor was not true [79];

(3) having considered the reasons [80], the Board did not accept that she was a victim of domestic violence imposed by her husband [81];

(4) the Board concluded that her story of the loan and domestic violence was fabricated by her for her claim [82-86].

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant filed Form 86 dated 27 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant reiterated that she would be harmed or killed by the creditor or by her husband if she returned to Vietnam.

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 applicant has not set out any error of the Board in the assessment of her case in support of her application. The grounds in support of her application do not assist her application as the Board had rejected her evidence.

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision. 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 17^th day of May 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 17 May 2021 Ngugen Thi Chung 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 17 May 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6034/17/2/33/V913 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2879/16 (Formerly RBCZ 3001725/14)(T8S92) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)