DOAN VAN KHUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 179/2024

[2024] HKCFI 1083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 179 of 2024

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.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 18 January 2024 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 5 May 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 September 2021 (the “Notice”) refusing his claim for non-refoulement protection.

2.  The Applicant is a Vietnamese national, now aged 33. He entered Hong Kong illegally on 16 November 2020. He was arrested on 20 November 2020. On 15 December 2020, 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 (the “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.

3.  This leave application was filed more than eight months 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. Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But as was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone.

5.  The Applicant gave no explanation for the delay in his Form 86 or supporting affirmation. At the hearing, he said he attended the appeal before the Board on 3 November 2022 when he was living in Mong Kok. He was then put in prison custody since February 2023 for having taken up unlawful employment. He admitted that he had not informed the Board of his imprisonment and change of address. As he had never received any information about the outcome of his appeal, in May or June 2023 he asked his friend to make enquiries about his appeal. In July 2023, his friend informed him that his appeal was dismissed. He sought help from the welfare officer in Tong Fuk Prison where he was serving his sentence. He was told to wait till his transfer to immigration detention in Castle Peak Bay Immigration Centre as Tong Fuk Prison did not have facilities for him to make the supporting affirmation. After serving his prison sentence, he was transferred to immigration detention in Tai Tam Gap Correctional Institute on 23 December 2023. He was then able to file his leave application on 18 January 2024. There is some difficulties in accepting his account about what the welfare officer told him. The Court accepts that the confusion may be due to his misapprehension about what he was advised by the welfare officer. But even accepting his account to the full, as was held by the Court of Appeal in Karamjit Singh[7] and Re Hasmi Rizwan Imran[8], it is the applicant’s obligation to keep the authorities informed of his means of contact. If he does not, he has to bear the consequence which his failure brings. This explanation, even if it is true, is no answer to his failure to update the Board with his contact particulars. He had no reasonable explanation for the delay. However, out of extreme caution, the Court also explored the merits of his intended judicial review.

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 claims that he would be harmed by a moneylender (the “moneylender”) upon his return because of he is unable to repay his outstanding debt.

7.  The Applicant was born in Quảng Ninh. He received twelve years of education and has working experience in transportation. In March 2015, he started his own seafood business. In early 2019, he borrowed a loan of 800 million Vietnamese Dong (VND”) from the moneylender at a monthly interest rate of 5% to expand his business. His business went well and he was able to pay the monthly interest.

8.  Towards the end of 2019, his business suffered massive loss due to the pandemic because he could not sell the seafood to China. Hence, he could not pay interest since December 2019. In January 2020, the moneylender went to his home to demand payment and threatened to beat him to death unless he paid back the loan. In February 2020, the moneylender went to his home with three associates. They beat and kicked him for ten to fifteen minutes. He suffered bruises all over his body and a wound in his head, which required stitching. He was hospitalised for a week and it took him more than a month to recover.

9.  The Applicant attempted to make a police report, but the police demanded VND 10 million as “handling fees”. He then went to another police station to make a report, but was told to make a report at the station he had first approached. About two months later, in around April 2020, the moneylender went to his home again with three associates. The Applicant was having dinner with seven of his friends and brothers. The moneylender did not attack him but threatened to kill him if he did not pay the next time they met.

10.  After this visit, the Applicant went to live with his relative who lived some 300 kilometres away. He stayed there safely until November 2020 when the moneylender went to his relative’s home to look for him. The Applicant was not at home at that time. Fearing for his safety, he fled to Hong Kong.

11.  He does not believe the Vietnamese police would help him as the police was corrupt. He also does not believe internal relocation would be viable because the moneylender could locate him through his connections.

The finding of the Board

12.  The Board found the Applicant’s evidence vague, lacking in details and full of contradictions and inconsistencies. He gave conflicting accounts about the nature of his seafood business. In his claim to the Director, he said that he bought a boat to catch fish in the sea (買船出海打魚). However, he told the Board that he bought the boat to buy seafood at sea (買船出海購買海產). He attributed the inconsistency to his failure in memory due to his drinking habits. Other than his oral testimony, he could produce no evidence about his seafood business.

13.  The Applicant could not recall the amount of interest he owed and the amount of interest he paid. He explained that was because his mother was responsible for liaising with the moneylender while he was busy at work. He told the Board that he only met the moneylender once, but he told the Director that he encountered the moneylender on multiple occasions.

14.  The Board rejected his evidence as being incredible and found he had failed to prove the factual basis to support his claim to non-refoulement protection. However, it also assessed his claim on the basis of the case as he asserted. It found as a matter of law and fact he is not entitled to protection under any of the four applicable grounds under the USM.

15.  Based on the low intensity and frequency of harm in the past incidents, the Board found that the evidence did not evince a manifest intention or ability on the part of the moneylender to seriously harm the Applicant in the past or in the future. It found it likely that the moneylender only intended to use violence to compel him to repay and had no intention to seriously harm him. In addition, the past threats and ill-treatment came nowhere near attaining a minimum level of severity. The Board found the risk of harm to the Applicant on his return to Vietnam is low.

16.  Based on authoritative and credible country of origin information (“COI”), the Board was satisfied that the Vietnamese government is capable of maintaining law and order, fighting corruption and protecting its citizens. It found there is no reasonable evidence to suggest that adequate state protection would not be available to the Applicant on his return to Vietnam.

17.  In respect of his claim under Torture Risk ground, the Board found the moneylender was not a public official or person acting in an official capacity. Hence, the risk of torture from the moneylender did not meet the definition of ‘torture’ under Section 37U(1) of the Immigration Ordinance as to entitle him to protection. Further, it found although some police officers had asked the Applicant for a bribe, the action of a few police officers was not indicative of the attitude of the entire police force in Vietnam. There was nothing to suggest that the Applicant would not receive state protection upon his return or that the moneylender’s actions were acquiesced by the Vietnamese authorities.

18.  As for BOR 2 risk and BOR 3 risk, the Board repeated its assessment that the Applicant did not face any serious risk of harm upon his return. In relation to BOR 2 risk, it further noted that the Applicant is not subject to any death penalty or at risk of genocide or the types of risk proscribed by BOR 2. In any event, state protection would be available to him to mitigate any risk of harm he might face.

19.  In relation to persecution risk, the Board found that the Applicant’s harm or risk of harm arose out of a private monetary dispute which fell outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

20.  The Board further found that as an able-bodied adult with over 11 years of education and 9 years of working experience, it would not be unduly harsh to expect him to relocate to other cities, such as Da Nang or Can Tho to avoid the moneylender.

Legal principles applicable to judicial review

21.  The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[9].

Grounds for judicial review

22.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he only repeated his claim that he would be killed or tortured if returned to Vietnam. He had been invited by the Court via its letter dated 26 January 2024 to advise the Court of his first language and to file submissions. He responded but did not file any submissions. At the hearing, after the above legal principles had been explained to him, the Applicant confirmed that he had no complaint about errors of law, procedural unfairness or irrationality.

23.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Vietnam. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Discussion

24.  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; correctly identified the issues and observed a very high standard of fairness. The primary basis of the Board’s Decision is that it found the Applicant’s evidence incredible and rejected his case in its entirety. He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

25.  The secondary basis of the Board’s Decision is that even if his case were accepted, he is not entitled to protection as a matter of law and fact. Furthermore, it found on the basis of authoritative and credible COI that adequate state protection and internal relocation are available to prevent or avoid the risks if they turn out to be real. Insofar as these are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as these are finding of law, the Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault.

26.  For the above reasons, the proposed judicial review has no realistic prospect of success. Accordingly, extension of time to file the application for leave to apply for judicial review and the leave application are 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