Case Document

100%Judiciary

HCAL 2779/2018

[2022] HKCFI 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2779 of 2018

BETWEEN

	Pham Thi Tinh Xuan	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 8 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 national of Vietnam. She entered Hong Kong illegally and was arrested on 5 August 2014. On 15 February 2015, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband and a triad headed by Dao Minh Tuan (“Dao”) because of the unpaid debt owed by her husband.

5.According to the applicant, her husband started to demand large sums of money and to abuse her physically in 2005 due to his gambling and drug problems. The applicant’s report to the police about the assaults was of no avail as the police viewed this as a domestic matter. In 2010, Dao brought some 30 men to the applicant’s house to demand the repayment of her husband’s loan and it was the first time the applicant learnt about the debt.

6.In the ensuing two years, Dao and his men constantly visited the applicant’s house. Without the repayments, they damaged the properties inside the house and once attacked the applicant and her husband. Having no capability to repay such sum, the applicant signed the house deed, transferring the house to Dao. Nevertheless, the house was insufficient to cover the debt and thus the applicant and her husband were hunted down by Dao. In 2013, the applicant’s husband also threatened to kill her if she refused to involve in illegal drug trafficking. Out of fear, she eventually fled to Hong Kong for protection. Details of her claim were set out at paragraph 6 of the Notice of Decision dated 19 October 2015 (“the Director’s First Decision”) and paragraphs 3 to 21 of the Board’s Decision as described below.

The Director’s Decisions

7.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”).

8.By the Director’s First Decision, the Director refused her claim on the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[24]; (ii) no substantial grounds were present to believe that Dao and his associates had targeted the applicant [25]-[31]; (iii) state protection would be available to her [32]-[44]; and (iv) internal relocation was an option open to her [45]-[52]. In the Notice of Further Decision dated 9 December 2016, 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 to life would be violated upon her return.

9.For simplicity, 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. On 10 May 2017, the Board conducted an oral hearing for her appeal.

11.The Board observed that, while the applicant intended to seek protection in Hong Kong, she did not enquire about how and instead took up an unlawful employment [24]-[26]. It further noticed that, in the written representations made before the Director, the applicant only claimed fear of harm from her husband but not from Dao [27]-[37]. The Board also questioned the applicant’s version that her husband was not at home whenever Dao and his men visited her house. This was implausible if her claim of Dao’s daily visit was true and her husband still resided in that house [39]-[40]. The Board further cast doubt on Dao’s change of behavior when he visited the applicant’s new residence asking for repayments but without physically hurting her [41]-[42]. As a result, the Board found that the applicant’s claim lacked credibility [48].

12.Alternatively, the Board considered the alleged risk of harm. It found that the injuries suffered by the applicant from Dao or her husband were not serious [50]-[52]; that, after reviewing the relevant country of origin information, the Board found that state protection would be available to her [56]-[58]; and that internal relocation to Ho Chi Minh City was an option [59]-[62]. In assessing the individual grounds, the Board also noted that the disputes were private without state involvement [68]. For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

13.The applicant has filed Form 86 dated 6 December 2018 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant repeated her story in support of her claim and said that it was unfair for the Board to have made such Decision.

DISCUSSION

15.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).

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

17.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.”

18.There is no valid reason from the applicant to challenge the Board’s Decision. There is no evidence in support of her allegation that the Board was unfair.

19.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.

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

CONCLUSION

21.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 23^rd day of March 2022

	(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 23 March 2022 Pham Thi Tinh Xuan 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 23 March 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2487/15/10/156/V91 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1440/15 & RBCZ 9000866/16 (Formerly RBCZ 10749/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)