DAO THI VAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1469/2023

[2024] HKCFI 1080

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1469 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;

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 21 August 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 9 August 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 August 2022 (the “Notice”). 

2.  The Applicant is a Vietnamese national.   She entered Hong Kong illegally on 6 December 2019 and surrendered to the authorities on 21 January 2020.  On 19 February 2020, she raised a non-refoulement claim.  But on 24 June 2020, she withdrew her claim.  Then she applied to re-open her claim.  Her application was allowed and in due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.    In gist, she claimed that she would be harmed by a moneylender upon her return because of her inability to repay her outstanding debt.

4.  The Applicant, now aged 37, was born in Haiphong, Vietnam.  She received seven years of education and operated her own fish farming business in a pond near her home in 2012.  In 2013, she borrowed a five-month loan of 450 million Vietnamese Dong (“VND”) from the moneylender at a monthly interest of VND 20 million to expand her fish farm. She used the loan to buy feeds and hired three employees. Her business was good and she was able to pay monthly interest.

5.  However, a plague occurred in February 2014 and killed all her fish.  Since then, the moneylender pressed for repayment of the principal.  The Applicant used the profits accumulated from the business to keep paying interest until 2018.  Hence, the moneylender took no action against her.

6.  In early 2018, her friend Chu Ngoc Chien (“Chu”) lent her VND 200 million.  She used VND 50 million to pay the moneylender and used the rest to buy fish fry and feeds to restart her fish farm.  However, her plan failed because of a typhoon.

7.  In June 2018, the moneylender’s men came to her home to collect the debt (the “first incident”).  She could not pay.  In around mid-2018, the moneylender arrived at her home with ten men who were armed with wooden staves (the “second incident”).  They threatened to kill the Applicant unless she repaid the loan immediately.  The Applicant ran away from her home out of a sudden, but was hit by a car.  She recognised the driver was a man in her neighbourhood who had come to her home to collect debt before. Notwithstanding that she was bleeding in her leg, the moneylender’s men attacked her for several minutes until her neighbours arrived.  As they leave, they threatened to kill her unless she started paying interest. 

8.  The Applicant was hospitalised for about six months.  She made a fully recovery in May 2019. After she left the hospital, she went to live with Chu.  On Chu’s advice, she came to Hong Kong in late 2019.

9.  On a day of April 2020, she was told by cousin that her parents had paid back the loan owed to the moneylender and it was safe for her to return to Vietnam.  She therefore withdrew her claim for protection.  However, she did not return because of the pandemic.  She later learnt that the moneylender had coerced her cousin to lied to her so as to entice her return to Vietnam.  The moneylender still keeps sending men to her home every week to collect debt.

10.  The Applicant did not believe the Vietnamese police would protect her, as they would only protect rich people and would not get involved in private disputes.   Hence, she had never reported the matter to the police.  She claimed that internal relocation would not be viable because the moneylender had many associates and could locate her anywhere in Vietnam.

The finding of the Board

11.  The Applicant testified before the Board.  The Board found her incredible and her evidence inherently improbable.  First, the Board found it incredible that she did not repay the principal of the loan when according to her claim before the Director she had accumulated profits from her business sufficient to cover payment of interest from 2014 to 2018.  The Applicant’s explanation was that her financial condition during that period was such that she could only repaid the interest. The Board did not accept that explanation as it was incongruent with her claim before the Director.

12.  Second, she told the Board that during the second incident, the moneylender’s men beat her to the point of losing consciousness.  The Board found that evidence irreconcilable with her ability to recount the details about the entire incident before the Board.  That fact had never been mentioned to the Director.  The Applicant explained that it was due to lapse of time.  The Board found the explanation unreasonable.

13.  Third, she was unable to provide bank records to support her claim.  She claimed that this was because the loan was given to her by cash and she paid her employees by cash as well.  The Board found the absence of a bank account to be inconsistent with her evidence that she wanted to expand her fish farming business.

14.  Fourth, according to the Applicant, the loan was for a term of five months.  Hence, the Board found that there was no good reason why the moneylender did not demand return of the principal towards the end of 2013 or at the latest mid 2014; but waited until June 2018 to start taking steps to collect the debt.

15.  As the Board has dismissed the only factual basis for claiming protection, namely the loan and the alleged threats from the moneylender, the Board found she had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Vietnam.  Hence, it dismissed her appeal.

16.  Further and in the alternative, the Board assessed her claim on the basis of the case as the Applicant asserted.  It noted that the moneylender had only made two attempts to collect the debt and attacked her on one occasion.  The moneylender had the opportunity to kill her in either of those incidents in June 2018, but refrained from doing so.  It was the Applicant’s evidence that she stayed in a hospital for six months and then with her friend for one year without being harassed by the moneylender. The moneylender also never harmed her family in Vietnam after she fled to Hong Kong.  From all these circumstances, the Board drew the inference that the ill-treatment inflicted by the moneylender was to coerce her to repay the loan and the moneylender had no intention to kill or seriously harm her.

17.  As for her claim that the moneylender was well-connected and could not locate her anywhere in Vietnam, the Board found it to be a pure speculation on her part.  The moneylender did not locate her while she was hospitalised or when she was living with Chu.  There was nothing to suggest that the moneylender would be able to locate her upon her return.

18.  On the basis of authoritative and credible country of origin information (“COI”), the Board was satisfied that the Vietnamese government had taken steps to combat corruption and illegal debt collection activities.  There are also channels for citizens to complain about police misconduct.  It was the Applicant’s personal decision not to file a police report against the moneylender and there was nothing to suggest that the Vietnamese police would have refused to assist her.  The Board found adequate state protection is available to prevent or reduce the risk of harm to the Applicant from the moneylender.

19.  The Applicant had received seven years of education and was an able-bodied adult.  The Board considered it not be unreasonable to expect her to relocate to other cities, such as Nha Trang or Da Nang to avoid the moneylender.

20.  In respect of her claim under Torture Risk ground, the Board found the moneylender was not a public official or person acting in an official capacity.   Hence, it found as a matter of law that the harm likely to be inflicted by the moneylender fell outside the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance as to entitle her to protection.

21.  As for her claim under BOR 3 Risk ground, the Board found the ill-treatment she suffered in the past did not attain a minimum level of severity.  Hence it found the risk that she would suffer harm attaining such level of severity on her return to be low.

22.  In relation to BOR2 Risk, it found that she did not face any risk to her life upon her return and dismissed her claim based on this ground. 

23.  In relation to Persecution Risk, the Board found the Applicant was not threatened on account of her race, religion, nationality, membership of a particular social group or political opinion.  It therefore found the harm and risk of harm fall outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

24.  For all these reasons, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

25.  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[5].

Grounds for judicial review

26.  At the hearing, after the above legal principles had been explained to her, the Applicant confirmed she had no complaints about errors of law, procedural unfairness or irrationality.  She only requested the Court to reconsider her claim for protection.  However, she had advanced the following four grounds of application in her Form 86:

(1)  The Decision was unreasonable and unfair;

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

(3)  The Board acted unfairly by placing too much weight on COI without taking into account her personal background and experience;

(4)  The Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond;

(5)  The Director failed to take such argument into account or give it enough weight before reaching the Decision; and

(6)  On the evidence, the Board should have allowed the appeal.

Some of these grounds are directed at the Director and some at the Board.  For the benefit of the Applicant, it is assumed that all the grounds are directed at both the Board and the Director.  As the Director’s decision was superseded by the Board’s Decision: see Re Moshsin Ali[6], the Court will focus on the complaints against the Board.

Ground (1) – Unreasonable and unfair

27.  When asked about particulars of the unfairness, the Applicant replied in line with her confirmation that she had no knowledge about any unreasonableness or unfairness in the Decision or in the making of the Decision.

Grounds (2) – State acquiescence 

28.  In answer to the Court’s request for evidence or particulars of state acquiescence, the Applicant said that she had made a report to the police station but was just told to leave.   She said she had been to the police station three times but apparently no action was taken by the police.  Her complaint is contrary to her evidence before the Director and the Board.  As mentioned in paragraph 10, she told the Board that the police would only help the rich and would not be involved in personal disputes and hence she did not even report the matter to the police.  Thus, there was no evidence of state acquiescence before the Director or the Board.  There is no substance in this ground.

Ground (3) – Weighting on COI, corruption and incompetency of the administration

29.  The Applicant complains about the weighting given to the COI.  She complains that insufficient weight was given to COI about failure of the police in giving protection to the citizens.  After referring to COI from authoritative and credible sources, including the Country Report on Human Rights Practices 2021 published by the Department of State of the United States, Report of a Home Office fact-finding mission to Vietnam, Country Policy and Information Note: fear of illegal moneylenders, Vietnam, published by the United Kingdom Home Office, and various other news reports, the Board found, despite corruption and some unsatisfactory situations, the Vietnamese government has tried to improve the situation.  After considering the conflicting information, it held on balance that adequate state protection is available and internal relocation a possible option.  This is a finding of fact supported by evidence and within the province of the Director to make which this Court may not intervene save for errors of law, procedural unfairness and irrationality in the decision. 

Ground (4) – Unfairness and impropriety in assessing the Applicant’s explanation

30.  The Applicant complains that the Board improperly and unfairly assessed the credibility of her evidence by requiring her to respond to questions that she was not in a position to respond.  The Applicant was unable to give any particulars of the unfair or inappropriate questions asked of her which she was unable to answer.  This ground could not be evaluated in the absence of particulars. 

Ground (5) - The Board acted unfairly by failing to take such argument into account or give it enough weight before reaching the Decision.

31.  This ground could not be evaluated in the absence of particulars.  When asked about particulars, the Applicant relied on an incident after she had served her sentence for theft and was transferred to immigration detention.  She complained that the immigration officer never considered her case but only asked when would she return to Vietnam.  Most probably, the event occurred after the Decision of the Board had been made and was not part of the screening process.  It had nothing to do with the making of the Decision or the processing of her non-refoulement claim.  For the purpose of this leave application, there is no need to spend time investigating into the truthfulness or otherwise of this allegation.  Whatever happened during that incident or whenever that incident happened, there is no dispute that the Applicant underwent a screening interview as a result of which the Director made his decision in the Notice to refuse her claim.  There is also no dispute that she appeared before the Board which heard her appeal against the Notice.  The appeal was a hearing de novo and the Board’s Decision superseded the Director’s decision in the Notice.  The incident relied on by the Applicant was clearly not part of the appeal process.  Thus, whatever happened between the Applicant and that immigration officer has no impact on the Decision. 

Ground (6) – The Board should have allowed the appeal

32.  This is a blatant challenge of the Board’s finding of fact.  The Applicant did not give particulars as to what went wrong with the Decision in terms of errors of law, procedural unfairness and irrationality.  This ground could not be evaluated in the absence of particulars. 

Overall scrutiny of the Decision

33.  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 she disagreed with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she 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.

34.  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. 

35.  The Board found the Applicant’s evidence incredible and rejected the entirety of her case.  She had therefore failed to establish the factual basis to support her claim for protection, ie that she will be at risk of harm from the moneylender if returned to the Philippines. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal.  This is the primary basis of the Board’s Decision.

36.  The Board went further and assessed her claim on the basis of the case as she asserted. It found the Applicant had failed to prove as a matter of law her entitlement to non-refoulement protection under any of the four applicable grounds.  These are mixed finding of facts and of law.  Insofar as they are finding of fact, 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 they are finding of the law, they are absolutely correct.  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.  Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real.  These are also finding of fact which the Court on a judicial review will not interfere.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

37.  For the above reasons, the Applicant’s application for 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