Case Document

100%Judiciary

HCAL 2760/2018

[2021] HKCFI 2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2760 of 2018

BETWEEN

	Do Thi Tuyet	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 28 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 citizen of Vietnam. She came to Hong Kong illegally on 27 March 2017. She was arrested by police on 25 May 2017 for committing certain offences, for which she was charged, convicted and sentenced. She lodged non-refoulement claim with the Immigration Department by way of written representations on 4 October 2017. She was detained in the Lo Wu Correctional Institution.

5.The applicant claimed that, if refouled, she would be harmed or killed by the creditor, from whom she had borrowed VND 900 million for her poultry business in 2013. She suffered a huge loss because of the H5N1 virus spread in her farm in 2014. She was unable to pay the interest for the loan. The creditor came with some people armed with knife to demand for repayment of the loan and interest. She was unable to do so whereupon they assaulted her with knife. Her calf was cut. The creditor threatened that if she did not repay the loan, she would be killed. She had to move to live in some other places with her daughter in order to avoid the creditor. In December 2014 she moved to live in Hanoi where she had stayed for 2 years and 3 months. However, in March 2017, she saw the creditor and his men. She fled. Then she left Vietnam for Hong Kong. Details of her story are set out in paragraph 7 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 March 2018 (“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 the creditor upon her return to Vietnam was assessed to be low [11]; that state protection would be available to her [17] and that internal relocation was an option open to her [18].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. This issue will be discussed below.

9.The Board, having considered the evidence, rejected her appeal and affirmed the Director’s Decision. The Board found that there was no evidence that the state was involved in the incidents [28]; state protection was available to her [29]; that there was no evidence to show that the applicant would be subjected to a genuine and substantial risk of being killed by the creditor upon her return to Vietnam [31]; that she had not made out a case under the Torture risk or BOR 3 risk [35], the Persecution risk [39], the BOR 2 risk [43] and that internal relocation was an option open to her [49].

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

10.The applicant has filed Form 86 dated 5 December 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant simply repeated the facts she relied upon for her claim. She considered that the Board’s Decision is unfair.

DISCUSSION

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

13.I have noted that from the Board’s Decision, the adjudicator decided the appeal without a hearing. The Board is entitled to exercise its discretion after considering the factors in ST v Betty Kwan & Ors, CACV 115 of 2013 §§20-54. Section 12 of Schedule 1A of the Ordinance, which provides that determination of appeal can be done without a hearing:

“The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.”

14.As the Board had not questioned the credibility of the applicant in relation to the facts she relied upon for her claim, it is for the Board to assess the evidence in relation to the statutory provisions and the Convention for its determination of the applicant’s claim.

15.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.”

16.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.

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

CONCLUSION

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

Dated the 13^th day of July 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 13 July 2021 Do Thi Tuyet 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 13 July 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 10944/18/3/396/V2042 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 502/18 (Formerly RBCZ 11884/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)