Nguyen Thi Dung v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1989/2018

[2022] HKCFI 155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1989 of 2018

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 July 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 national of Vietnam.  She entered Hong Kong illegally on 7 August 2015 and was arrested by the Hong Kong police on 12 August 2015.  She lodged a non-refoulement claim on 30 November 2015. 

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband and his gangster friends.  According to the applicant, her husband was abusive and often hit her when he got drunk.  Whenever he demanded money from her and she refused, he would attack her.  On several occasions, she sustained injuries due to her husband’s assaults.  The attacks ceased between 2004 and 2014.  However, in summer 2014, the applicant was informed that her husband owed money to the gangster members.  Since they were unable to repay, the gangster members constantly went to their house and destroyed the items inside.  Half a month later, her husband was drunk again and he attacked and verbally threatened her.  Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 6 of a Notice of Decision dated 25 August 2016 of the Director (“the Director’s First Decision”) and paragraphs 7-16 of the Board’s Decision described below.

The Director’s Decisions

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 the Director’s First Decision, the Director refused her claim on the grounds of Torture risk, BOR3 risk and Persecution risk for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed upon refoulement was assessed to be low [11]-[15]; that state protection would be available to her [16] and that internal relocation was an option open to her [19]-[23].

8.In a Notice of Further Decision dated 25 January 2017, the Director also rejected her claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that her right of life under BOR 2 would be violated upon her return to her home country.

9.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board.  She was absent from the scheduled hearing on 14 June 2018.  The Board directed that notice should be given to the applicant about the Board’s intention to determine her appeal/petition in her absence.  She was required to submit written explanations for her absence within 7 days after the notice.  However, the applicant failed to comply with such direction.  The Board proceeded to determine her appeal on paper [40]-[44]. 

11.The Board found that the applicant’s claim was based largely on unsupported evidence and speculation.  For example, she failed to provide any medical evidence of her injuries and she had no proof that the gangsters were her husband’s friends.  The gangsters did not harass her after she gave them the matrimonial home [46].  Further, on the applicant’s own evidence, her husband did not attack her from 2004 to 2014 and he did not look for her after she left Vietnam.  It was also not satisfied with the applicant’s explanation for not reporting the alleged assaults to the police [47].  Besides, the Board found that there was no state involvement as it was a mere domestic violence dispute and state protection and internal relocation were both available to the applicant [48]-[50].  In totality, the Board concluded that the applicant’s evidence was questionable and unreliable and thus refused to accept that she would face any harm or risk upon refoulement [51]-[53].  Overall, since the applicant’s claim lacked credibility and the state protection and internal relocation alternatives were available, the Board rejected the applicant’s claim on all applicable grounds [54]-[74].  

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

12.The applicant filed Form 86 dated 19 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant simply repeated her story as in paragraph 5 above.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision.  The Court will not usurp his fact finding power.  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).

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

16.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.”

17.The applicant was absent without prior notice to the Board. The Board had given due notice to her that it would proceed to assess her appeal on paper if she failed to give explanation for her absence. She had failed to give any explanation for her absence. The Board proceeded to consider her case on paper and the Board had given reasons for its finding of the facts.

18.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.

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

CONCLUSION

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

Dated the 14^th day of January 2022

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