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

HCAL 275/2021

[2021] HKCFI 1711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 275 of 2021

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 16 February 2021 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.  She is now being detained by the Immigration Department.

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 was arrested by police on 17 January 2020 for illegal remaining in Hong Kong.  She had come to Hong Kong illegal for six times previously and was repatriated back to Vietnam.  She lodged the non-refoulement claim with the Immigration Department by written representation on 29 April 2019, 3 August 2020 and 3 September 2020.

5.The applicant claimed that, if refouled, she would be harmed by her ex-husband, Hoang for financial reason and by her creditor, Nguyen because she was unable to repay the loan from the creditor.  Hoang demanded money from her.  When she was unable to satisfy his demand, he beat her up and threatened to push her to be a prostitute to make money for him.  As to Nguyen, Hoang had made her sign a loan document for money paid to him.  Nguyen demanded repayment of the money obtained by Hoang from her. She was unable to repay and Nguyen threatened to send her daughter to a whorehouse for money.  She had to bring her daughter to Hong Kong with her.  She had come to Hong Kong and was repatriated back for 6 times previously.  Details of her story 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 10 November 2020 (“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 by Hoang or Nguyen if she returned to Vietnam was assessed to be low [11]; that state protection would be available to her [21]; that the state was not involved in the incidents [44-45] and that internal relocation was an option open to her [28].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  She appeared before the adjudicator of the Board on 28 January 2021.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  The Board found that her evidence was inconsistent and was unacceptable [21 & 22]; that state protection would be available to her [25]; that there was no evidence to support that the state was involved [32]; there was no evidence to support that there was a real risk that she would be subjected to harm if she returned to Vietnam [36-38]; there was no evidence that her right under BOR2 risk would be violated [40]; that her case was not covered by the Convention of Persecution risk [43] and that internal relocation was an option open to her [46].

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

10.The applicant has filed Form 86 dated 3 March 2021 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant had not set out any specific ground for her application.

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 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.

15.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 7^th day of July 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