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HCAL 1089/2021
[2023] HKCFI 997
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1089 of 2021
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BETWEEN
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Dang Van De |
1st Applicant |
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Pham Thi Huyen |
2nd Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
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:
1. Leave to apply for Judicial Review by the 1st Applicant be refused; and
2. Leave to apply for Judicial Review by the 2nd Applicant be withdrawn
Observations for the Applicant:
Introduction
1. This is the Applicants’ application by Form 86 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 23 July 2021 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his two Notices of Decision in respect of each of them individually, both dated 19 January 2021 (collectively, the “Notices”).
2. The Applicants are Vietnamese nationals. They were arrested on 25 May 2020 for having entered Hong Kong illegally. Then they raised a non-refoulement claim. In due course, their 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]. By the two Notices, the Director separately rejected their claims under all four applicable grounds. They appealed to the Board against the decision of the Director in the Notices. By its Decision dated 23 July 2021, the Board dismissed their appeal. They now apply for leave to apply for judicial review of that Decision.
3. The Applicant 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 that the application may be justly determined on paper without an oral hearing.
The Applicants’ case
4. The following account of the Applicant’s case is mainly based on the information in their non-refoulement claim forms (“NCF”) prepared by them with legal assistance and the record of their screening interview in the presence of their lawyer. In gist, they claimed that they would be harmed or killed by a moneylender (the “Moneylender”) upon their return to Vietnam because of their inability to repay their loan.
5. The Applicants husband and wife and have a son, now in Vietnam. They had senior high school education. Previously, the 1st Applicant was a truck driver. He had jointly operated a retail clothing shop with the 2nd Applicant. The shop was closed after one year due to business loss.
6. In about June 20199, they borrowed 700 million Vietnamese Dong (“VND”) from the Moneylender named La Van Thanh to operate a shrimp farming business. The term of the loan was one year at a monthly interest of VND 20 million per month. Several storm occurred in about October/November 2019. As a result, their shrimp farm suffered total loss. They became unable to repay the loan and interest.
7. One day towards the end of November 2019, the Moneylender and five subordinates came to the Applicants’ home to collect payment. They were armed with knives or wooden rods. After vandalising their home, they gave them a month to raise money to repay and left.
8. In December 2019, the Moneylender’s men came again. The Applicants could not repay. The men assaulted them with wooden rods and threatened to kill them.
9. In mid-January 2020, the Moneylender and his men came again. The Applicants offered to make partial repayment in exchange for extension of time to repay the balance, but the Moneylender refused. They chopped the 1st Applicant’s left shoulder and battered the 2nd Applicant on her head. The 2nd Applicant lost consciousness and was hospitalized for one week. The Applicants made a report to the police but the police did not give them any assistance.
10. Subsequently, the Moneylender learned about their attempt to seek police assistance and threatened them on the telephone. The Applicants fled to Hai Phong City. They rented an apartment and started working at a shoe factory. Two months later, their landlord telephoned them that someone was looking for them at their apartment.
11. The Applicant then fled to Mong Cai. From there, they entered China and then sneaked into Hong Kong by boat on 13 March 2020.
The finding of the Board
12. The Applicants testified before the Board. The Board found them incredible and rejected their account as untruthful. The Board noted a serious inconsistency in the Applicants’ evidence about their offer of partial payment. The 1st Applicant told the Board that he raised VND 100 million from his parents to offer to the Moneylender as part payment in exchange for extension of time to repay, but the Moneylender refused but did not take the money which was then returned to his parents. However, the 2nd Applicant told the Board that the Moneylender took the money but refused to give them extension of time. The Board noted the absence of objective evidence in support of the loan and shrimp business. It did not accept the Applicants were indebted to the Moneylender or that they had operated the shrimp business.
13. The 1st Applicant claimed to have been chopped on the shoulder and the 2nd Applicant to have been hit on the head and rendered unconscious necessitating a week’s hospitalisation. The Board found there was no objective or reliable evidence to substantiate the Applicants’ account of being assaulted on the last two occasions of the Moneylender’s visits. It did not accept the Applicants’ evidence that they had been assaulted by the Moneylender.
14. The Applicants asserted that the Moneylender had extensive network to locate them anywhere in Vietnam and that they could not obtain police protection because of police corruption. The Board found their first assertion as speculative and their second assertion unsupported by authoritative and credible country of origin information (“COI”). While police corruption is a problem in Vietnam, the COI show that the Vietnamese government has taken steps to combat corruption and illegal debt collecting activities and there are avenues for complaint against police inaction. The Board found that sufficient state protection is available. In addition, having regard to their age, education background and experience, the Board found it not unduly harsh for the Applicants to relocate to other areas in Vietnam, such as Ho Chi Minh City or Hanoi to avoid the risk of harm, if it becomes real.
15. Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found the Applicants had failed to establish their claim for protection under any of the applicable grounds. Hence, it dismissed their appeal.
Legal principles applicable to judicial review
16. 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
17. The Applicants did not advance any grounds for judicial review in the Form 86. In the 2nd Applicant’s affirmation filed in support of their leave application, she said that she merely repeated their case of fear of harm from the Moneylender. In effect, the Applicants are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk of harm if returned to Vietnam. For reasons as explained above, that is a finding of fact solely for the Board which the court in a judicial review will not interfere unless the finding involved errors of law, procedural unfairness or irrationality. In the absence of specific or proper grounds of application, the Court 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.
Conclusion
18. 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 Board rejected the centrepiece of the Applicants’ claim that they had raised a loan from the Moneylender and were in genuine fear that they will be harmed by the Moneylender because of their inability to repay. It was on that basis that the Board found they had failed to prove the factual basis to support of their claim for 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 did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
19. The 2nd Applicant had filed an affirmation on 24 November 2022 seeking to withdraw, in respect of herself only, her leave application. She confirmed that she fully understood the consequences of her withdrawal and that she could return to Vietnam safely. The Court is satisfied that she made the application out of her free will. That application to withdraw having been made before this determination, the Court respects her wish and allows her application to withdraw from this leave application.
20. As the proposed judicial review has no realistic prospect of success, the 1st Applicant’s application for leave to apply for judicial review is refused.
Dated 17th day of April 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 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 17 April 2023
Dang Van De &
Pham Thi 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 17 April 2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17562/21/1/58/V2706
USM 17563/21/1/59/V2707
Director of Immigration
Putative Interested Party’s ref. no.:
VRD/183/1/20(CZ)
VRD/184/1/20(CZ)
Department of Justice,
Senior Assistant Law Officer
(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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