Bui Thi Thieu v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2830/2018

[2021] HKCFI 2670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2830 of 2018

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 1 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 7 September 2014 and was arrested by the Immigration Department and she lodged non-refoulement claim with the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor, from whom she had borrowed 270 million Vietnamese currency and she was unable to repay.  The creditor had lent her money before and she was also unable to repay him.  He had forsaken the debt.  He was willing to lend her money this time.  When she was unable to repay the loan, the creditor brought in some other people and assaulted her.  She had to leave Vietnam for Hong Kong.  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 his application in relation to the following risks:

a.  risk of torture under Part VIIC 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 8 May 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 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 [13] and that internal relocation was an option open to her [18]. 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. Having considered the relevant authority, the Board decided the appeal should be dealt with without a hearing.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. Based upon the Director’s Decision, the Board agreed with the Director and found that the level of risk of her being harmed or killed was low; that there was no evidence to show that the state was involved and therefore state protection should be available to her and that internal relocation was an option open to her if she returned to Vietnam. See paragraphs 19-49. The Board dismissed her appeal.

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

10.The applicant has filed Form 86 dated 11 December 2019 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 reiterated her story for her claim and considered that it would be unfair for the Board to cause her to return to Vietnam.

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 is only her opinion, which does not assist her application.

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 leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 17^th day of September 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