HCAL 198/2019
[2021] HKCFI 3360
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 198 of 2019
____________________
| BETWEEN | | |
| | Do Thi Ha | 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;
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 18 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) and the Director of Immigration (the “Director”) is the interested party.
3. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing has therefore dealt with on paper.
The applicant
4. The applicant is a citizen of Vietnam. She entered Hong Kong illegally on 29 September 2008 and surrendered herself to the Immigration Department on 1 September 2014. She lodged a non-refoulement claim by written signification on the same date.
5. The applicant claimed that, if refouled, she would be harmed or killed by her debtor. The applicant said that she had a construction materials company in her home village. To establish that company, she borrowed 100 million Vietnamese Dong from her friend. However, due to cash flow problem, she was unable to repay and her friend threatened to kill her if she defaulted the payment. Out of fear, she fled to Hong Kong for protection. Details of her story are set out in paragraph 8 of the Director’s Decision described below and paragraphs 27-34 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 23 December 2016 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no ground for believing that she would be harmed or killed by her friend if she returned to Vietnam [13]-[16]; that state protection would be available to her [17]-[20] and that internal relocation was an option open to her [21]-[26].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. She appeared before the Board on 17 August 2018, during which she gave evidence in support of her claim. The applicant confirmed before the Board that she and her family were never hurt by her friend; that her friend just blamed her verbally and that she had not suffered any injuries [28].
9. The Board found that the applicant’s versions on the money lending and the series of loan collection incidents were adequately consistent [36]. It proceeded to consider her claim under all applicable grounds: the Board found that the evidence clearly indicated that the dispute between the applicant and her friend was private in nature [38] and that, after considering the country of origin information, state protection was available to the applicant [39]-[48]. Thus, the applicant’s claim on Persecution risk failed [49]. For the same reasons, her claim on BOR 2 risk also failed [51]. Further, since no physical injuries or mental injuries were reported, the applicant’s BOR 3 risk also failed [53]-[57]. Finally, there was no evidence showing that her friend was connected with the State and thus there was no state acquiescence or involvement [58]-[67]. Her claim on Torture risk also failed. Therefore, the Board dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 22 January 2019 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant repeated her reasons for coming to Hong Kong.
DISCUSSION
12. 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).
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
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. There is no valid reason from the applicant to challenge its 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 18th day of November 2021
| | (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
Notesfor 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 18 November 2021
Do Thi Ha
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 18 November 2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5743/17/1/27/V816
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2250/16 (Formerly RBCZ 2928/14)(T8I80)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1