Case Document

100%Judiciary

HCAL 959/2019

[2023] HKCFI 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 959 of 2019

BETWEEN
	Pham Thi Huong	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 29 March 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.

The applicant

3.The applicant is a national of Vietnam. She entered Hong Kong illegally on 5 May 2016. On 11 May 2016, she was arrested by the police for illegal remaining. On 23 June 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by Lien.

4.In short, the applicant borrowed a loan from Lien, who was a loan shark, in March 2014 for her clothing business. Since January 2015, her business had been deteriorating. Worsen still, her goods were seized by the Vietnamese police in May 2015. While they returned the clothes to the applicant in August 2015, the clothes were all in nonsalable qualities. As a result, the applicant had no income to repay the loan. Since then, Lien had been chasing for repayments. In October 2015, Lien and two unknown men visited the applicant’s house and assaulted the applicant and her husband. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 9 December 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as her claimed fear of harm from Lien was groundless. In elaboration, the Director found that (i) the past ill-treatments failed to attain a minimum level of severity [12]; (ii) state protection would be available to her [13]; and (iii) internal relocation was a viable option [14].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 13 February 2019, the Board conducted an oral hearing for her appeal, during which she testified [4].

8.The Board made the following findings. First, the applicant’s claimed risk of harm was not from the state or state agents. There was no evidence of state involvement in this private monetary dispute [8]-[9]. Secondly, the evidence did not support a finding of physical or mental harm attaining to the severity that satisfied the requisite requirement [10]-[12]. Thirdly, internal relocation was proven viable in accordance with the country of origin information [14]-[18]. As a result, the Board rejected the applicant’s claim and dismissed her appeal. In passing, the Board also found that her delay in lodging the non-refoulement claim undermined her credibility [31]-[34].

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

9.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

10.In her affirmation in support of her application, the applicant said she disagreed with the Director and the Board’s Decision. She also set out the following grounds.

(1)  In the Director’s Decision paragraph 14(c), the Director made a mistake of her address at Hai Phong.

(2)  The Director’s Decision is wrong to say that the General Secretary of the Communist Party of Vietnam had taken steps against corruption and he and his subordinates had disclosed their assets. This is not the fact of the case.

(3)  The Director was wrong to say that she would have state protection because she had reported the matter to police, which did not make investigation.

(4)  The Board had not considered how likely it was that her feared treatment would materialize.

DISCUSSION

11.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).

12.The Court will bear in mind that the Board’s Decisions 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.As to the grounds under paragraph 10, supra, (1) is a mistake of her brother’s residence, but it will not affect the substance of her case in the Director’s assessment. (2) and (4) are her personal opinion without any evidence in support. (3) will not assist her case as the Director’s conclusion was made by reference to the country of origin information, which applies to the state as a whole. Her complaint against a police station is only an individual case. She had not taken the complaint further to other police stations or the higher levels.

15.There is no valid ground to challenge the Board’s Decision.

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

CONCLUSION

17.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 6^th day of April 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 6/4/2023 Pham 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 6/4/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5561/16/12/208/V748 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2568/16 (Formerly RBCZ 12516/16) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)