Case Document

100%Judiciary

HCAL 1475/2021

[2021] HKCFI 3857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1475 of 2021

BETWEEN

	Vu Thi Huong	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 9 September 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.

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 national of Vietnam. She entered Hong Kong illegally on 4 March 2020 and was arrested on 7 March 2020 by the police. On 14 April 2020, she lodged a non-refoulement claim.

5.The applicant claimed that, if refouled, she would be harmed or killed by her creditor because she was unable to repay the loan and that she would be sold to a brothel. According to the applicant, since January 2020, her creditor had been chasing her for repayment of the loan that she borrowed on 20 August 2019. She was unable to repay as her closing business was destroyed by a fire. The applicant claimed that her creditor and followers destroyed her house and attacked her for around 3 minutes on two occasions. She sustained injuries on both occasions. On 21 February 2020, when she fled to another village in Vietnam to avoid her creditor, she was solicited to a room where a pimp sought to sell her to the brothel. She escaped and later found out that the pimp was in the same group with her creditor. Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 6 of the Director’s Decision described below and paragraphs 1 to 17 of the Board’s Decision.

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 6 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 her being harmed or killed by her creditor or being sold by the pimp was assessed to be low [10]-[16]; that state protection would be available to her [17]-[20] and that internal relocation was an option open to her [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. An oral hearing was scheduled to be on 7 September 2021, during which the applicant gave oral testimony before the Board.

9.After considering the documents and hearing the applicant, the Board rejected her appeal. The Board identified several inconsistencies in the material aspects of her claim, such as the identities of the pimps and her period of stay in Mong Cai City [43]-[47]. It found that the applicant’s intention to seek protection in Hong Kong was suspicious [48]-[49]. Further, the Board considered the relevant country of origin information, in particular, the actions taken by the government to combat illegal moneylending activities and therefore concluded that reasonable state protection was available to the applicant [50]-[81]. Thus, the applicant’s claim under Persecution risk failed [82]. Further, there was no evidence that the applicant was targeted by the government and that there was no state involvement [95]-[101]. For these reasons, the Board also rejected the applicant’s claim on the remaining grounds.

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 22 October 2021 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that she did not agree with the Board’s Decision. It would be dangerous for her to return to Vietnam.

DISCUSSION

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

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14.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.”

15.The applicant has submitted no valid grounds to challenge the Board’s Decision.

16.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.

17.The applicant fails to show that she has any realistic 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 29^th day of December 2021

	(Allen LEE)
	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 29/12/2021 Vu Thi Huong 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 29/12/2021 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 17408/20/11/76/V2640 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 632/20 (Formerly RBCZ 34/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)