Case Document

100%Judiciary

HCAL 2827/2018

[2021] HKCFI 2608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2827 of 2018

BETWEEN

	Le Thi Anh	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 3 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 Vietnamese national. She came to Hong Kong. She admitted that she came to Hong Kong illegally on 9 May 2016. She surrendered to the Immigration Department on 10 May 2016. On 10 May 2016, she lodged non-refoulement claim with the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed or killed by the creditor and his people. In 2013, she borrowed 300 million Vietnamese currency from the creditor for her fishery business, which failed. She was unable to repay her debt. The creditor had brought his people, who were triad members, to her farm and demanded repayment. As she was unable to repay the loan, on 5 occasions, they threatened her and her husband. In 4 of those 5 occasions, they used wooden sticks and knives to attacked her and her husband. Her husband was scared and left the family. He was nowhere to be found. She also had to leave Vietnam for Hong Kong, leaving her children with her mother. 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 10 November 2016 (“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 and his people if she returned to Vietnam was assessed to be low [12]; that state protection would be available to her [19] and that internal relocation was an option open to her [20 & 25]. 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 of the Board on 10 September 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision for the reasons that her evidence did not show that the creditor had the intention of killing her as he was chasing her for repayment of the loan; that her injuries and those of her husband were not serious or within the context of section 37U (1) of the Ordinance or BOR 3; that there was no evidence that the state was involved in the incidents; that there was no evidence to show that state protection would not be available to her as she did not herself seek state protection when she was in Vietnam and that internal relocation was an option open to her. See §§43-84 of the Board’s Decision.

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

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

11.In her affirmation in support of her application, the applicant simply said that she would be harmed or killed if she returned to Vietnam because she was unable to repay the debt.

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 applicant’s reason in support of her application does not assist her as it is inconsistent with the Board’s findings.

15.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.

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

CONCLUSION

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

Dated the 10^th day of September 2021

	(K.H. LI)
	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 10/09/2021 Le Thi Anh 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 10/09/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5255/16/11/194/V622 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2215/16 (Formerly RBCZ 11816/16) (T8S106) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)