NGUYEN TUAN VINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1626/2023

[2024] HKCFI 122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1626 of 2023

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;          or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 13 September 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 13 January 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 January 2022 (the “Notice”).

2.  The Applicant is a Vietnamese national. He entered Hong Kong on 14 October 2020 illegally. He was arrested on 14 July 2021. On 23 July 2021, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

Late application

3.  The leave application was filed eight months and one day after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than five months out of time. Leave to file the leave application out of time is required.

4.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[6], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay.

5.  The Applicant did not give any explanation for the late filing in his Form 86 or supporting affirmation. At the hearing, the Court explored with him his explanation for the delay. He said he had never received the Decision as he was in prison custody since 28 December 2022. That was about a fortnight before the date of the Decision. He admitted he had never informed the Board of his change of address or his imprisonment. In Karamjit Singh[7], the Court of Appeal held it is the applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. Hence, the Applicant failed to offer a reasonable explanation for the delay. However, instead of refusing him extension of time and henceforth dismissing his leave application, out of abundance of caution, the Court also considered the merits of his leave application.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by a moneylender (the “Moneylender”) upon his return to Vietnam because of his inability to repay the loan he had borrowed from the Moneylender.

7.  The Applicant, now aged 39, was born and raised in Xa Doan Bai, Huyen Hiep Hoa, Bac Giang Province, Vietnam. He has 15 years of working experience as a farmer and 5 years of experience operating a business trading wooden artifacts.

8.  In early 2015, he borrowed 1.5 billion Vietnamese Dong (“VND”) from the Moneylender at monthly interest of VND 30 million to start his business. He signed a written loan agreement which specified that there was no fixed date for repayment of the principal. He was able to pay interest until early 2020 when he had to close down his business because of the pandemic. He was unable to make interest payments since then.

9.  Between April and September 2020, the Moneylender and five of his associates went to the Applicant’s home every month to demand repayment of the outstanding loan. They beat him with fists and threatened to kill him. He could not remember how many times he was assaulted.

10.  Towards the end of September 2020, the Moneylender attacked the Applicant again. The Moneylender and his men also telephoned him and threatened to kill him and his family. But nothing eventful happened between then and 12 October 2021 when he fled to Hong Kong.

11.  Since arriving in Hong Kong, he maintained regular weekly contacts with his wife. His wife told him that the Moneylender visited his home in Vietnam every month and asked for his whereabouts, but never harmed her or the family.

12.  The Applicant said he did not report these incidents to Vietnamese police because he did not believe the authorities would intervene in such private disputes. He did not believe relocation within Vietnam viable because he believed the Moneylender could locate him through the vast triad network. In addition, he could not make a living in other cities such as Da Nang or Ho Chi Minh City because he had no family support and he could not find any employment there.

The finding of the Board

13.  The Board found the Applicant’s evidence about his business shifty, sketchy and minimal. There were no documents to prove the existence of the loan or his business which he claimed had been operated for five years. The Board noted that the annual interest rate under the alleged loan agreement of 24% was far below the usual rate of 180% commonly charged by moneylenders in Vietnam. The Board found it inherently implausible that the Moneylender would lend such a huge sum of money to the Applicant, who was a farmer living in a rural area at that time, without any collateral or guarantee. It also drew adverse inference against his credibility for his failure to make a prompt claim for protection until nine months after his arrival in Hong Kong. It found the Applicant was not a credible witness, his account of events is not credible and he had failed to prove the basic facts to support his claim for protection.

14.  The Board accepted that illegal money lending was a widespread problem in Vietnam. However, on the basis of authoritative and credible country of origin information (“COI”) it found the Vietnamese authorities were willing and able to offer effective protection against illegal debt collection activities. It was the Applicant’s own choice not to seek protection from the Public Security Bureau in Vietnam and not that sufficient state protection was not available.

15.  It found that there was no evidence to suggest that the Moneylender was as well-connected as the Applicant feared or that the Moneylender would be able to locate him outside his locality. It found that the Applicant could safely relocate to other parts of Vietnam, such as Ho Chi Minh City to avoid the harm from the Moneylender, if the risk of harm turns out to be real.

16.  The Board, therefore, found the Applicant had failed to establish that he will be subject to any of the proscribed risks of harm upon his return to Vietnam. It also went further and assessed the Applicant’s claim by applying the law applicable to the non-refoulement protection under the USM to the case as he asserted. It found the Applicant is not entitled to protection under any of the four applicable grounds under the USM. For all these reasons, the Board dismissed the Applicant’s appeal against the Director’s Notice.

The legal principles applicable to judicial review

17.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[8]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

18.  The Applicant did not put forward any grounds of the intended review in his Form 86. In his supporting affirmation, he advanced the following six grounds of application:

(1)  The Decision was not reasonable and unfair (Paragraph B.1 of the affirmation);

(2)  The Director failed to give proper weight to the presence of state acquiescence (Paragraph B.2 of the affirmation);

(3)  The Board placed too much reliance on COI but failed to take his personal background and experience into account (Paragraph B.3 of the affirmation);

(4)  The Board acted improperly or unfairly when assessing whether to accept or not to accept the Applicant’s explanations and require him to response to questions that he was in no position to respond (Paragraph B.4 of the affirmation);

(5)  The Director failed to take such (above) arguments into account (Paragraph B.5 of the affirmation); and

(6)  On the findings of the Board, the appeal should have allowed (Paragraph B.6 of the affirmation).

19.  Some of the grounds are directed at the Director. For the benefit of the Applicant, those complaints are deemed to have been made against the Board. These grounds are all lacking in particulars. In essence, all these grounds revolve around procedural unfairness and irrationality. At the hearing, after the legal principles in the preceding section had been explained to him, he confirmed that he had no complaint about procedural unfairness or irrationality in the Decision and he left the issue of errors of law for the Court to investigate on his behalf. Hence, the Court did not explore the particulars of his grounds with him. These grounds boil down to two points; namely whether the Decision was made as a result of procedural unfairness and whether the Decision is irrational. These issues will be considered in the overall scrutiny of the Board’s Decision. Hereunder, the Court will deal with specific points raised by these six grounds.

Ground (1) – Unreasonable and unfair

20.  This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting article 28 of the Basic Law and article 2 of the Bill of Rights and mentioning right to life. These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided he meets the criteria in any of the four applicable grounds under the USM. The question is whether the Applicant meets those criteria. The Board was of the opinion that the Applicant did not. That is a finding of fact exclusively within the province of the Board. The Applicant disagrees and complains that the Decision was unfair and unreasonable. These issues will be covered in the Court’s overall scrutiny of the Board’s Decision.

Grounds (2) – State acquiescence 

16.  For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well. The Applicant complained that the Board failed to give proper weight to the presence of state acquiescence. But the issue of state acquiescence was never raised by the Applicant. There was no evidence that public officials or the Vietnamese government were involved, whether actively or passively, in the threats or assaults alleged by the Applicant, let alone his allegations were disbelieved by the Board. It is also the Applicant’s own evidence that he did not seek help from the authorities and not that the authorities refused to give him protection. Hence, there is no issue about state acquiescence in this case. This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case.

Grounds (3) – Weighting on COI

17.  The Applicant complains about the weighting given to the COI. After referring to COI from authoritative and credible sources, including the Country Policy and Information Note – Vietnam and Report of a Home Office fact-finding mission to Vietnam published by the United Kingdom Home Office in 2018 and 2019 respectively, the Board found adequate state protection available. It was only the Applicant’s choice not to access such protection because of his own personal belief or speculation. He also offered no COI to contradict those quoted by the Board.

18.  Likewise, the Board relied on authoritative and credible COI to reach its finding that internal relocation within Vietnam is possible. These COI include Country Information Report Vietnam 2019, published by the Department of Foreign Affairs & Trade of the Australian Government; Overview of Internal Migration in Vietnam, published by the UNESCO, UNDP, IOM and UN-Habitat; Country Policy and Information Note – Vietnam: Fear of illegal moneylenders, published by the United Kingdom Home Office. They are all from authoritative and credible sources. Again, the Applicant offered no COI to contradict the information therein.

19.  As for the weight to be given to these COI, it is a finding of fact solely within the realm of the Board which this Court may not interfere save for errors of law, procedural unfairness and irrationality. There is no substance in this ground.

Ground (4) – Unfairness and impropriety when assessing whether to accept the Applicant’s explanations and in requiring him to response to questions that he was in no position to respond

20.  Again, for the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well. The Applicant gave no particulars of the explanations rejected by the Board and the questions asked by the Board which he complained of. Whether to accept or reject the Applicant’s evidence is part of the Board’s fact finding process. It a matter solely for the Board which this Court may not interfere save for errors of law, procedural unfairness and irrationality. As for the Applicant’s complaint about questions put to him which he was in no position to answer, it is a claimant’s obligation to cooperate with host state to answer questions relating to his claim. Whether the question put is one which the Applicant was in no position to answer or unable to give a satisfactory answer is a matter of finding of fact for the Board. There is no substance in this ground.

Ground (5) - Failure to take such arguments into account

21.  The Applicant did not give particulars of what arguments he had presented to the Board which the Board failed to take into account and why such arguments would have affected the Board’s Decision.

Ground (6) – On the Board’s finding of fact, the appeal should have been allowed

22.  This is an overall challenge of the Board’s Decision, which the Court may only interfere for errors of law, procedural unfairness and irrationality.

Conclusion

21.  For the above reasons, none of the grounds advanced by the Applicant has substance. In overall terms, the Applicant is in fact attempting to challenge the Board’s finding of fact under the guise of judicial review.

22.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board tested the Applicant’s evidence against authoritative and credible COI and found he was not a credible witness and his account of events is not credible. Hence, it found he had failed to prove factual basis to support his claim to protection. The Board gave full reasons for its findings. These are findings of fact, which the Court in a judicial review may not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.

23.  The Court could detect no errors of law or procedural unfairness in the Decision. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. This is all the more a good reason for refusing extension of time for the Applicant to file the leave application. Accordingly, leave to apply for judicial review is refused.

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

Form CALL-1