Tran Thi Thuy Quynh v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [Decision On Leave Application]

CourtCourt of First Instance (Hong Kong)
Judgment Date02 June 2020
Neutral Citation[2020] HKCFI 1007
Subject MatterConstitutional and Administrative Law Proceedings
Judgement NumberHCAL1641/2018
HCAL1641/2018 TRAN THI THUY QUYNH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1641/2018

[2020] HKCFI 1007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1641 of 2018

BETWEEN

Tran Thi Thuy Quynh 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 oral submission by the Applicant 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 is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 27 August 2019.

2. Leave was granted to the applicant to delete the Director of Immigration (“the Director”) as the respondent. The only respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)

The applicant

3. On 7 November 2016, she entered Hong Kong illegally from Shenzhen and she was arrested by police. She was referred to the Immigration Department on 8 November 2016. On 18 November 2016, by a written representation, she lodged a non-refoulement claim.

4. In support of her claim, she said that if refouled, her life would be in danger because she owed a person, Hai, a loan which she was unable to repay. Hai threatened to harm or kill her.

5. In mid-2014, the applicant borrowed 500 million Vietnamese Dong from Hai, a money-lender to run her business in the market. By the end of 2015, there was a fire which destroyed her business in the market. Hai and several of his men came to her home to demand repayment of the loan. They said that if she was unable to repay the loan, she had to sell drugs for them or to act as a prostitute to pay off the loan. Hai’s men pulled her hair and kicked her waist until it bled. They also threatened to kill her. She was scared and left her home. She lived in relative’s place for a year. She worried that one day, they would be able to locate her. Therefore, she came to Hong Kong.

The Director’s Decision

6. The Director considered her application in relation to the following risks:

a. risk of torture under Part VIIC 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 24 October 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

8. The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 26 March 2018 and 23 April 2018 respectively.

9. By the Board’s Decision dated 16 May 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

10. The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a. This case was a loan dispute between the applicant and Hai [30].

b. Although Hai had threatened her, Hai had not carried out his threat. Also, though Hai’s men kicked her waist, she did not suffer serious injury [33].

c. Hai’s treatment did not amount to torture within the meaning of section 37U (1) of the Ordinance [35].

d. Although the applicant said that the police could not help her because they were corruptive, the information showed that the Vietnamese government had recently undergone reforms to combat corruption. In any event, the applicant had never reported the matter to police [36].

e. The Board found that the applicant had failed to establish that there were substantial grounds for believing that she would be subjected to...

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