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

Case No.HCAL 841/2019[2021] HKCFI 1697

Court

High Court CFI

Date15 Jun 2021

Judge—

Case Document

100%Judiciary

HCAL 841/2019

[2021] HKCFI 1697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 841 of 2019

BETWEEN

	Vu Thi Hue	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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant applied for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 13 March 2019 (the “Decision”) on 27 March 2019 (the “leave application”). Before the application came to be heard, she applied by affirmation dated 23 July 2019 to withdraw her application because the problem in her home country was solved and she wished to return.

2.However, Deputy High Court Judge Lung refused to entertain her request and gave direction that her case will be listed for hearing and if she did not attend the hearing, her leave application will be determined in her absence. The direction was sent to her address as stated in the Notice of application for leave to apply for judicial review, ie Form 86 and affirmation.

3.Two further letters containing directions for the further conduct of the hearing dated 10 and 24 May 2021 and a notice of the hearing scheduled on 9 June 2021 were also sent to the Applicant in the meantime.

4.The Applicant did not attend the hearing. Attempt was made to contact her by telephone, but the telephone service had been suspended.

5.The Applicant is a Vietnamese national. She sneaked into Hong Kong on 16 August 2014 and surrendered to the Immigration Department on 22 September 2014. Then, she sought non-refoulement protection, claiming fear of being harmed or killed by her moneylender.

6.On 30 December 2016, the Director issued a Notice of Decision refusing her application (the “Notice”). The Applicant appealed against the Notice to the Board. By its Decision dated 13 March 2019, the Board dismissed her appeal. Then, she sought leave to apply for judicial review of the Decision.

7.The Applicant did not state any grounds in her application form (Form 86) and did not file any supporting affirmation setting out her grounds for applying for judicial review. The function of the court in judicial review is not to re-assess the non-refoulement claim afresh: see Nupur Mst v Director of Immigration[1]. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In the absence of specific grounds of review, the court could only scrutinise the Board’s decision, and intervene, if it is able to identify any errors of law, procedural unfairness or irrationality.

8.Having rigorously examined the Board’s Decision and the papers with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the Unified Screening Mechanism. The Board took great care in analyzing the evidence. It set out its reasons why it considered the Applicant’s fear and risk not genuine. It concluded that there was no factual basis to support the Applicant’s claim of fear and risk on which her claim for non-refoulement protection under the four applicable grounds is founded. The Court was satisfied that the Decision of the Board was utterly without fault. There were no errors of law or irrationality in its Decision or procedural unfairness. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success.

Conclusion

9.For the above reasons, leave to apply for judicial review is refused.

Dated the 15^th day of June 2021

	(Sammi Wu)
	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 his 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 15 June 2021 Vu Thi Hue 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 15 June 2021 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5804/17/1/88/V834 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2880/16 (Formerly RBCZ/3001746/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] [2018] HKCA 524 at para 14(1)

Cites 1 case

Cases cited in this judgment

Nupur Mst v. Director of Immigration