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

HCAL 2701/2018

[2021] HKCFI 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2701 of 2018

BETWEEN

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 15 November 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 Vietnamese national.  She came to Hong Kong illegally on 13 August 2015.  She surrendered to the Immigration Department on 17 August 2015.  She lodged her non-refoulement claim to the Immigration Department on 17 December 2015.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she was unable to pay off her loan.  She had borrowed altogether 200 million Vietnam currency from a loan shark for her business.  She was unable to pay the interest or the capital.  The loan shark had gone to her house three times and demanded payment, threatening her and her family that if she was unable to repay her loan, they would kill her and her family.  On one occasion, her hair was pulled by the loan shark.  She was so scared that she moved to live in other places in order to avoid the loan shark.  She took her friends’ advice and came to 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 11 November 2016 (“the Director’s Decision”), the Director refused her claim for the reason that the level of risk of being harmed or killed by the loan shark if she returned to Vietnam was assessed to be low [14]; that state protection would be available to her [15] and that internal relocation was an option open to her [20].  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 adjudicator on 7 September 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons that on the applicant’s evidence, she was not seriously tortured or injured by the loan shark; that there was no evidence that the state was involved; that state protection would be available and that on the totality of the evidence, the applicant failed to establish a personal and real risk of personal injury or her rights under BOR 2 would be violated.  See paragraphs 48-80 of the Board’s Decision.

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

10.The applicant has filed Form 86 dated 28 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 said that the Board was unfair and failed to make detailed investigation into her case.  The Board relied upon third party evidence (the country of origin information) to make judgment of the situation of Vietnam and held the view that although there was corruption in Vietnam, the high level officials would be less inclined to corruption.  This has been proved to be wrong by the news that showed that even the Prime Minister had taken bribe.  The Board was taking its own subjective view to assess the situation in Vietnam.  As such, the Board had not made an in-depth investigation into the facts of the case.

DISCUSSION

12.The Court will bear in mind that the Board’s Decisions 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.As to the applicant’s complaints against the Board, first, the adjudicator can rely on the country of origin information for the local situation of Vietnam without going to the country to make investigation himself.  The information is provided by other countries.  It has been held by the courts to be reliable information.  Of course, the applicant is at liberty to produce other information contrary to the information for the Board’s consideration.  It will be for the Board, after considering all the evidence, to determine the facts of the case.  It is quite obvious that the Board did not reject the facts of her case totally.  The Board held that, given the facts as alleged by the applicant, she was unable to establish that she would be subjected to Torture risk, BOR 2 risk, BOR 3 risk or Persecution risk as state protection would be available to her.  These are facts that the Board is entitled to find in the hearing, as held by the Court of Appeal in the above authority.  The Board has given its reasons for the findings.

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 27^th day of May 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