Case Document

100%Judiciary

HCAL 775/2021

[2021] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 775 of 2021

BETWEEN

	Nguyen Thi Ut	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 27 December 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 14 December 2015. She had committed offences and was sentenced to imprisonment for 15 months. She submitted non-refoulement claim with the Immigration Department by written representation. She is being detained by the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed or killed by the creditor from whom she had borrowed 300 million Vietnam currency for her poultry farm business in 2010 and she was unable to repay the loan. The creditor brought with him several people armed with gun and wooden sticks to demand repayment. She was assaulted. They pulled her hair and held a gun at her head, threatening her that if she did not repay the loan, she would be killed. She moved to live in another place. But she was located by the creditor and was assaulted. She left Vietnam for Hong Kong in 2015. 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 20 February 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 being harmed by her creditor if she returned to Vietnam was assessed to be low [10]; that state protection would be available to her [15]; that there was no evidence that the state was involved [16] and that internal relocation was an option open to her [19].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. She did not appear before the adjudicator of the Board on 10 October 2018. The Board, having given her the notice that her appeal would be considered on paper unless she explained her absence within the time allowed by the law. She did not respond to the notice. The Board therefore dealt with her appeal on paper.

9.The Board was unable to clarify her evidence in relation to her poultry farm business; how the loan was drawn down from the moneylender and how the money was spent; why she did not report the matter to police, but only to the People’s Committee; her illegal activities in Hong Kong; inconsistent evidence in relation to her elder sister’s participation in the business; the discrepancy about the nature of business of the poultry farm. See paragraphs 95-115. Without the clarifications above, the Board found that the applicant was not a truthful witness [116]; that her evidence was not credible [118]; that she had fabricated her case about the loan and her poultry farm [119-120]; that state protection should also be available to her [125] and that out of caution that if the finding of the facts was wrong, internal relocation was an option open to her [155].

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

10.The applicant has filed Form 86 dated 7 May 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. She simply asked for judicial review of the Board’s Decision.

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 19^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 19 July 2021 Nguyen Thi Ut 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 19 July 2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 6440/17/3/95/V1052 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3371/16 (Formerly RBCZ 11874/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)