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HCAL 1083/2022
[2023] HKCFI 3363
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1083 of 2022
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BETWEEN
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Nguyen Thi Thanh Huyen |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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 To:
Leave to apply for Judicial Review refused.
Observations for the applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 13 October 2022 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 30 September 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 7 October 2021 (the “Notice”) rejecting her application for non-refoulement protection.
2. The Applicant is a Vietnamese national. On 24 July 2021, she lodged a non-refoulement claim alleging to have sneaked into the Mainland and then Hong Kong in March 2021. In due course, her 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]. Her claim was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now seeks 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 claims that she would be harmed or killed by a moneylender (the “Moneylender”) upon her return to Vietnam for being unable to repay her loan owed to the Moneylender.
4. The Applicant, now aged 46, had received seven years’ formal education and worked as a shoe maker and casual labourer for twenty-seven years. She was married twice and divorced. She has a daughter now aged 27.
5. In June 2019, the Applicant was informed that her daughter was arrested by the police for trafficking in cannabis. The officers demanded a bribe of 500 million Vietnamese Dong (“VND”) for a two-third reduction in her daughter’s sentence. She borrowed that amount of money from the Moneylender at a monthly interest rate of VND 2.5 million. The principal had to be repaid in mid-2020. She used the loan to pay the bribe and her daughter was sentenced to three years’ imprisonment.
6. The Moneylender had triad connections. She and her men visited the Applicant’s home every month to collect the interest. The Applicant was able to pay interest from June 2019 to January 2020, but was unable to pay since February 2020 when she became unemployed. Since then, the Moneylender and her men threatened to kill the Applicant if she did not pay.
7. In December 2020, the Moneylender’s men assaulted the Applicant with fists and kicks when the Applicant was unable to pay. She suffered bruises and swellings in her thigh. She did not seek medical treatment and recovered in three weeks. She did not report to the police because she thought the police would not help her.
8. In January to March 2021, the Moneylender and her men visited the Applicant to demand payment. The Applicant was unable to pay. The Moneylender and her men verbally abused her and left without physically assaulting her.
9. The Applicant sneaked into Dong Xing in March 2021 and then into Hong Kong. Since arriving in Hong Kong, she learned from her mother in August and September 2021 that the Moneylender and her men came almost daily to her home to look for her.
10. The Applicant does not believe she could avoid the Moneylender by internal relocation because the Moneylender could locate her through the residence record.
The finding of the Board
11. The Board determined the appeal without an oral hearing, pursuant to Section 12 of Schedule 1A to the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. It assessed the Applicant’s claim on the basis of the case as she asserted.
12. It found the Applicant’s fear of persecution is not well founded. The Moneylender only used violence on the Applicant during the incident in December 2020 and the injuries she suffered were not serious. Other than that, the Moneylender only verbally abused or threatened her. More importantly, the feared persecution arose out of a personal monetary dispute between the Applicant and the Moneylender and was not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely race, religion, nationality, membership of a particular social group or political opinion. There was also no government involvement in the dispute or threat. On the basis of authoritative and credible country of origin information, the Board found that though corruption is a serious problem in Vietnam, the government has taken steps to combat corruption and adequate state protection is available. For all these reasons, the Board found the Applicant is not entitled to protection under this ground.
13. Likewise, the Board found the Applicant is not entitled to protection under BOR 3 Risk ground because the injuries she suffered did not attain the minimum level of severity and state protection is available.
14. It found BOR 2 Risk is not engaged as there is no risk of the Applicant being subjected to death sentence or genocide.
15. The Applicant never suffered serious bodily harm at the hands of the Moneylender. For the same reasons as stated above, the Board was not satisfied that she is entitled to protection under Torture Risk ground.
16. In addition, on the basis of authoritative and credible country of origin information, the Board rejected the Applicant’s assertion that with her triad connection the Moneylender could locate her anywhere in Vietnam. It found that being an able-bodied adult with her education and work experience, the Applicant could safely relocate to other parts of Vietnam to make her own living and to avoid the risk of harm from the Moneylender.
17. For the above reasons, the Board dismissed her appeal.
Legal principles applicable to judicial review
18. 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 feasibility 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
19. After having been explained the above principles, the Applicant confirmed she had no complaints about procedural unfairness or irrationality. She left it to the Court to look for errors of law in the Decision on her behalf. She had advanced a two page grounds of application. Basically, she quoted the procedural background and repeated the essence of her case. She reiterated that the Moneylender and gangsters in Vietnam disregard the law and are willing to kill to satisfy their anger and ferocity. She argued that she would be tortured, beaten or even killed, if returned to Vietnam. She disagreed with the Board’s finding that she could relocate herself to other parts of Vietnam because her health is not good and she is not an active person. She repeated her fear of being located by the Moneylender through the social network of gangsters and their clandestine connections with corrupt elements in the government and police apparatus.
Discussion and conclusion
20. These grounds are challenges against the Board’s finding of fact. In effect, the Applicant is seeking to appeal the finding of fact by the Board under the guise of an application for judicial review. For reasons as stated in the preceding section, this is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
21. Having rigorously examined the Decisions, 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 Board assessed the Applicant’s claim on the basis of the case as she asserted. She could not have any complaint on this finding of fact. On the basis of authoritative and credible country of origin information, the Board is also satisfied that state protection is available and internal relocation feasible to prevent or avoid the risk and harm if these turned out to be real. It was on that basis that the Board found that the Applicant had failed to prove her 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. 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. The proposed judicial review has no realistic prospect of success.
22. For the above reasons, leave to apply for judicial review is refused.
Dated 28th day of December 2023.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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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)).
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Sent to the Applicant
on 28/12/2023
Nguyen Thi Thanh Huyen
Applicant’s ref. no:
Nil. |
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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 28/12/2023
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 18988
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1450/21 (Formerly RBCZ 11386/21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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