Case Document

100%Judiciary

HCAL 91/2019

[2023] HKCFI 346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 91 of 2019

BETWEEN
	Vu Thi Dua	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	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 2 January 2019 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 as a visitor on 22 November 2013 and her extension of stay was later extended to be on 18 March 2015. However, she did not depart and had overstayed since 19 March 2015. On 3 March 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor.

5.In short, the applicant borrowed a loan from her creditor so that she could leave for Hong Kong to marry a Hong Kong resident in 2013. Originally, she foresaw that she could repay the loan as she could work in Hong Kong. Yet, she later realized that she was not permitted to work in Hong Kong. As a result, she defaulted the loan repayments. She was told that her creditor visited her parents’ house, smashed the properties inside, and threatened to kill the applicant upon her return. Out of fear, the applicant stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 25 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm. Meanwhile, the creditor had shown no intention to harm or even kill the applicant. Even if the creditor possessed such intention, there was no evidence suggesting that she could locate the applicant elsewhere. Also, the applicant’s evidence was largely based on hearsay information [12]; (ii) nevertheless, state protection would be available to her [13]-[16]; and (iii) internal relocation was a viable option [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 October 2018, the Board conducted an oral hearing for her appeal, during which she testified [14].

9.The Board considered the applicant’s oral evidence and the country of origin information [15]-[25]. It noted that the applicant did not produce any independent evidence of the loan. She also contradicted herself in describing the interest payments. Meanwhile, on the applicant’s evidence, it was implausible that she could repay the loan bearing such high interest rate within a year [32]-[37]. As a result, the Board cast doubt on the existence of the loan [38].

10.In assessing the individual grounds, the Board noted that there was no state involvement in this private monetary dispute [41]; that the creditor only intended to intimidate the applicant without possessing the intention to harm or kill her [45]; and state protection and internal relocation were both available to her [47]-[53].

11.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

12.The applicant has filed Form 86 dated 10 January 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant said that the creditor and his subordinates will inflict more serious threat and physical harm on her or even kill her as she is unable to repay the loan.

DISCUSSION

14.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, §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 Board had, for the reasons it had given, rejected her evidence on the loan she alleged. The grounds in paragraph 13 above are not valid to challenge the Board’s Decision.

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

Dated the 21^st day of February 2023

(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 21/2/2023 Vu Thi Dua 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 21/2/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 12331/18/7/81/V2126 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2272/18 (Formerly RBCZ 11023/17)(PSO)(T6I123) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)