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HCAL 1434/2018
[2023] HKCFI 109
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1434 of 2018
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Nguyen Duc Bang |
Applicant |
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and
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative 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:
1. Extension of time for the Applicant to apply for leave to apply 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 20 July 2018 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/the Non-refoulement Claims Petition Office (the “Board”) dated 21 February 2017 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 September 2015 and 29 November 2016 (respectively, the “2015 Notice” and “2016 Notice”). Though the Director is named as a proposed respondent in his supporting affidavit dated 20 July 2018, no relief is sought in respect of the Notices or any decision of the Director.
2. The application was filed seventeen 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, it was filed more than fourteen months out of time. The application is deemed to include an application for leave to apply out of time.
3. In AW and Director of Immigration and William Lam[1], 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 it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. He gave no explanation for the delay which is so substantial that leave may be refused on this ground alone. Nevertheless, for completeness, the Court proceeded to assess the prospect of success in the proposed judicial review, which is the single most determinant factor in an application for leave to apply out of time.
4. The Applicant is a Vietnamese national. He had previously entered Hong Kong with his wife in 1989, claiming that he suffered from religious persecution. He was voluntarily repatriated in 1996. He entered Hong Kong again on 16 December 2013 as a visitor and was permitted to remain until 22 December 2013. He overstayed and was arrested on 18 March 2014. On the following day, he raised a non-refoulement claim. He was arrested on 30 July 2014 for using a forged ID card and taking up unauthorized employment. He was sentenced to 14 months of imprisonment.
5. In due course, his non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. His claim under the first three grounds and that based under the fourth ground were respectively dismissed by the Director in the 2015 Notice and 2016 Notice.
6. He appealed to the Board against the decision of the Director in the two Notices. His appeal was dismissed by the Board’s Decision dated 21 February 2017. On 20 July 2018, he applied for leave to apply for judicial review of the Decision of the Board. He did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicant’s case
7. 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 his creditors (the “Moneylenders”) and lose his religious freedom upon his return.
8. The Applicant is a Roman Catholic, now aged 53. He is divorced with three children. He received education up to Class 7 secondary level and has years of working experience as a farmer.
9. He started a grocery business with a friend in around 2010. He borrowed more than VND 200 million from a total of 12 Moneylenders. He did not remember the details of those loans and how much he had repaid. In 2011, for reasons unknown to him, his goods were confiscated by the Customs and Excised officers. He suffered heavy loss. He requested the Moneylenders for extension of time to pay. The Moneylenders agreed, but threatened that they would hire gangsters to kill him if he failed to repay.
10. The Applicant could not repay. In around 2012, he hid himself in An Lao and Ha Coi. His family told him that the Moneylenders had come to his house to look for him every other day and had vowed to put him in jail or hire gangsters to hit him. His family was never harmed. One day, when he visited his family secretly, he ran into one of the Moneylenders, Ms Huong. Ms Huong threatened to kill him if he failed to repay. He managed to escape by pretending to go to fetch her money for repayment. He went back to An Lao. He did not report the threat to the police as he indeed owed the Moneylenders money.
11. He sneaked into Mainland China once in around between 2011 and 2012 but he returned to Vietnam after a few months. This was because he could not communicate with the people there and he did not know how to go to a church. After returning to Vietnam, he decided to flee to Hong Kong for feared that the Moneylenders would eventually locate him and kill him and to seek religious freedom.
12. He also complained about the actions taken by the Vietnamese government against the Catholic church in Vietnam. His complaints were mostly related to events before 1996, particularly between 1986 and 1989. But he admitted that he was able to go to church after his voluntary repatriation in 1996. At the hearing before the Board, he confirmed that before he left Vietnam in 2013 he was able to attend Mass in his own church and that the situation had “opened up a little bit” in recent times. He did not dispute the Country of Origin Information (“COI”) submitted by the Director about improved relationship between the Church and the Vietnamese government in recent years.
The finding of the Board
13. In view of the Applicant’s evidence about religious persecution as summarised in paragraph 12 above, the Board was satisfied that there is no real chance that he will suffer persecution by reason of his religion if he is returned to Vietnam. It then proceeded to consider his claim based on risks from the Moneylenders.
14. The Board found that the Applicant was not telling the truth. It noted that when the Applicant arrived in Hong Kong in December 2013 he told the authorities that he came to visit a relative rather than to seek asylum. He only raised a non-refoulement claim when he was arrested for overstaying three months later. The Board also found he had a “tendency to make up … evidence as he goes along”, as demonstrated by his first time assertion in the Notice of Appeal to the Board about the threats made to his mother. He was inconsistent as to whether his mother had run away and he lost contact with her as stated in the Notice of Appeal or he had been in touch with her as recently as three weeks before the hearing before the Board. The Board did not find him credible and was not satisfied that he had proved his claims on a balance of probability.
15. Even on the basis of the case as he asserted, the Board was not satisfied that there is any real chance that he will suffer severe pain at the hands of the Moneylenders were he to return to Vietnam. Except for one pawnbroker and another Moneylender who was engaged in the business of moneylending, the other Moneylenders were vegetable sellers and a construction worker. No gangster was actually involved in collecting the debt. The worst violence he suffered was a grab on his collar by Ms Huong, but he managed to escape.
16. Furthermore, the fact that the Moneylenders could not locate him while he was hiding in An Lao and Ha Coi showed that they did not have the ability to locate him outside his home area in Haiphong. The Board considered it reasonable for the Applicant to relocate himself elsewhere in Vietnam to avoid the possible risk and it would not be unduly harsh to expect him to do so.
17. For the above reasons, the Board dismissed his appeal against the Notices.
The legal principle 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 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[7].
Grounds for judicial review
19. The Applicant did not put forward any grounds in support of application for leave to apply for judicial review in the Form 86. In his supporting affidavit dated 20 July 2018, he said that he disagreed with the Director’s decision to send him back to Vietnam and asserted that the “some documents issued by Vietnam communist government which are impossible to be trusted”. Presumably, by “some documents”, he was referring to the COI relied on by the Director and the Board. He also exhibited a Money Borrowing Agreement from a pawnshop, his legal aid application card and a covering letter from the Immigration Department together with his Non-refoulement Claim Form and record of his screening interview. Though his complaint is directed at the Director, it is deemed, for his benefit, to be directed at the Board as well. Basically, he is seeking to challenge the Board’s finding of fact, particularly his incredibility, under the guise of judicial review. That is not permissible.
Discussion and conclusion
20. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was 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 clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notices. It correctly identified the factual and legal issues involved in the claims.
21. The Applicant’s claims were founded on his alleged loans owed to the Moneylenders and their threats. The Board carefully weighed the evidence and assessed his credibility. It found him incredible and his evidence inherently improbable. It did not accept his evidence about his loans. It was not satisfied that there was a real chance that he will suffer severe pain at the hands of the Moneylenders were he to return to Vietnam. As the Applicant bore the burden of prove of his claims, such findings were fatal. 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 under the USM. This conclusion was further supported by availability of internal relocation. These are finding of facts which the court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality in the decision.
22. The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board. There are no such vitiating elements in the Decision. 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.
23. In view of the total lack of merits in the intended judicial review, the Court did not find it necessary to investigate the reasons for the long delay, the relative prejudice to the Applicant and to the intended respondent as a result of the Court’s decision one way or the other. Obviously, the application does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event. For the above reasons, no extension of time was granted for filing the Form 86 and the application for leave to apply for judicial review was refused.
Dated the 12th day of January 2023
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(Chung Lai Fan, Christine)
for Registrar, High Court |
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 the Applicant’s 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 12 January 2023
Nguyen Duc Bang
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 12 January 2023
Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2343/15/10/12/V80
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000924/16 (Formerly QA T/C 621/15, RBCZ 125/14, RBCZ 159/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] CACV 63/2015 (unreported) 3 November 2015
[2] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ
[3] 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
[4] 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”)
[5] 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
[6] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[7] [2018] HKCA 524 at [14(1)]
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