DO KHANH DUONG v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1301/2021

[2022] HKCFI 1722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1301 of 2021

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 refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  The Applicant applied by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 February 2021 (the “Notice”) and the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 28 June 2021 (the “Decision”).  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 it appropriate that his application be determined on paper without an oral hearing.

2.  The Applicant is a national of Vietnam, now aged 36.   He entered Hong Kong on 4 July 2020 illegally and was arrested by the police on 19 October 2020.  On 6 November 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, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 19 February 2021, the Director rejected his claim under all four applicable grounds.  On 23 February 2021, the Applicant lodged his Notice of Appeal with the Board against the decision in the Notice.  Two and half months later, he applied to withdraw his appeal.  On 28 June 2021, the Board granted his application.  Then, on 16 September 2021, he applied for leave to apply judicial review of that Decision.

3.  The subject matter of the Applicant’s application for leave to apply for judicial review is the Board’s Decision of 28 June 2021 allowing his own application to withdraw his appeal before the Board.  The focus of this application is the facts surrounding and leading to the making of that Decision and the propriety of that Decision.  Thus, for the purpose of this application, there is no need to deal with the Notice.  Consideration of the Notice will only arise if the Applicant succeeds in his application for leave to apply and in the subsequent judicial review of the Decision.  The facts surrounding the Applicant’s non-refoulement claim and the decision in the Notice are not the subject matter of this application.  Those facts will only be briefly mentioned as part of the background.

The Applicant’s case for non-refoulement protection and the Director’s decision in the Notice

4.  For the same reasons, there is no need to go into details of the Applicant’s case for non-refoulement protection.  According to the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer, the Applicant had borrowed two loans totalling VND 300 million from a moneylender for his business purposes.  However, he could not repay as his business suffered a heavy loss.  The moneylender verbally threatened him with death if he could not repay.  He tried to negotiate with his moneylender, but was assaulted which resulted in bruises all over his body and a loss of four teeth.  It took him eight months to recover from the injuries.  His wife made a report to the police and thrice sought follow up action, but the police took no action.  The Applicant believed that was because the moneylender had connection with the police.  Out of fear, he fled to Hong Kong.  His claim for non-refoulement protection is based on his fear of being harmed or killed by his moneylender because of his inability to repay his loans, if he is returned to Vietnam.

5.  The Director found that the ill-treatment suffered by the Applicant did not reach the minimum level of severity as would entitle him to protection under the USM and was not satisfied that the moneylender had intention to kill him for defaulting on the loans.  On the basis of credible Country of Origin Information, the Director was also satisfied that state protection and internal relocation are viable options to minimise or avoid the harm or risk.  Hence, he rejected the Applicant’s claim under all the four applicable grounds under the USM. 

Facts leading to the making of the application to withdraw the appeal and the Board’s Decision

6.  The Applicant filed his Notice of Appeal with the Board on 23 February 2021.  Before the appeal came to be heard, he applied by way of an undated letter, which was received by the Board on 10 May 2021, to withdraw his appeal (the “withdrawal letter”).  He wrote:

“Recently, on 26^th February 2021, I wrote an application and sent the documents to Wanchai hoping the Director of Immigration Department and the Director of Immigration Bureau to reconsider my case so that I will be allowed to take refuge in Hong Kong. Now, I received news from my wife informing me from Vietnam: in these two months, the people from the triad syndicate whom I borrowed money from did not come to the house to demand payment of the debt and to harass my family members anymore. Therefore, I write this application hoping the Director of Immigration Department and the Director of Immigration Bureau will permit me to withdraw the documents that I sent out on 26-02-2021. In order for me to plead guilty and be sentenced as prescribed by Immigration Department of Hong Kong.”

This Court understood that by reference to “Director of Immigration Bureau”, the Applicant meant the Board.  Thus, in essence, the Applicant was saying that he was informed by his wife that the moneylender had ceased demanding repayment of the loans and harassing or threatening his family for the last two months, suggesting it is now safe to return to Vietnam.  Hence, he wished to withdraw his appeal lodged on 26 February 2021.  There was no reason for the Applicant not to believe his wife and to act on her information.   There is nothing to suggest he had been misled or misinformed and that his decision to withdraw the appeal was made otherwise than voluntarily.  What the wife told the Applicant is consistent with the Board’s finding that the moneylender had no intention to harm or kill the Applicant.

7.  On 26 May 2021, the Board replied informing the Applicant that it would consider approving his application for withdrawing his appeal if it did not receive any reply from him by 23 June 2021.  It wrote, after quoting what the Applicant said he was told by his wife:

“… Unless you advise us otherwise, we presume that –

(a) You are applying to withdraw your appeal/petition against the immigration officer’s decisions as contained in the Notice of Decision of 19 February 2021;

(b) You consider that it is safe for you to return to Vietnam; and

(c)   You understand the consequences of the proposed withdrawal (i.e. once the withdrawal is confirmed, your appeal/petition will be dismissed and the immigration officer’s decision will be confirmed.  You appeal/petition will be disposed of and finally determined by the Board.  No further action will be taken by the Board in relation to your appeal/petition.).”

The Board also advised him to seek independent legal advice on the consequence of the proposed withdrawal and that if it did not receive any reply from him on or before 23 June 2021, the Board would consider approving his application for withdrawal. 

8.  The Applicant did not respond.  Then, by its letter dated 28 June 2021, the Board notified him that his appeal was withdrawn.  The reasons given by the Board for allowing his application to withdraw his appeal are as follows:

“The Board has considered your application to withdraw your appeal/petition having regard to all the available information placed before it. After consideration, the Board is satisfied that your application to withdraw the appeal/petition was freely sought, and that you understood the consequences of the withdrawal. The Board is also satisfied that there is good reason for your proposed withdrawal of the appeal/petition, namely, that you consider it safe for you to return to Vietnam. Under the circumstances, the Board has given direction that your appeal/petition is withdrawn. The immigration officer’s decision of 19 February 2021 remains.”

Thus, the Board allowed the Applicant’s application to withdraw his appeal.  This is the Board’s Decision in respect of which the Applicant now seeks leave to apply for judicial review.  As a result of that Decision, the Applicant’s appeal was disposed of and finally determined, and the Director’s decision in his Notice remains. 

The legal principles applicable to judicial review

9.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5]. Thus, absent specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticisms of the Decision on the basis of error of law, unreasonableness and irrationality.

The Applicant’s grounds for the intended judicial review

10.  The Applicant did not state any grounds for his application in his Form 86.  In his supporting affirmation, he asserted:

“I do not agree with the decision of Torture Claims Appeal Boad (sic). So I want to file a judicial review against them. Because I can not return back now. My life will be danger over there so I hope to submit this petition to the court to judicial review.”

As may be gathered from the above averment, the Applicant disagrees with the Decision and he could not return to Vietnam because his life would be at risk.  What is the Decision of the Board?  The Board made no decision about the Applicant’s alleged fear of harm and risk.  It only allowed the Applicant’s application to withdraw his appeal as a result of which the decision of the Director in the Notice still stands.  Hence, the Applicant is not entitled to non-refoulement protection.  The Board granted the Applicant what he asked for and at his request.  That is the Decision which is the subject matter of the application for leave to apply for judicial review.

11.  What happened leading to making of the Decision has been summarized above.  From the Applicant’s withdrawal letter, it is obvious that his reasons for withdrawing the appeal is that based on the information from his wife, he considered it safe for him to return to Vietnam.  Before filing his application for leave to apply for judicial review, he never sought to re-open his appeal.  The Board did not have any opportunity to consider re-opening the appeal or refusing to re-open the appeal.  He is only seeking a judicial review of the decision of the Board allowing his application to withdraw the appeal.  The reason he gave in his supporting affirmation is that contrary to his belief as stated in his withdrawal letter, his life would be at risk if he returns to Vietnam.  Other than that he has not advanced any particular grounds of application for judicial review.

Discussion

12.  In the absence of specific 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.  

13.  The essence of the Applicant’s ground for judicial review is that he disagrees with the finding of the Director that it is safe for him to return to Vietnam.  In effect, he is seeking to challenge the Director’s finding of fact that he would not face any real harm or risk if refouled.  The Director’s finding had nothing to do with the Board’s Decision in allowing his application to withdraw his appeal against the Director’s decision in the Notice.  It must be emphasised that the Decision in respect of which the Applicant now seeks judicial review is the Decision to allow his withdrawal of his appeal.  Hence, his disagreement with the Notice is not a valid ground for seeking judicial review of the Decision.

14.  If he wishes to appeal that finding, he should appeal against that Notice.  But he has withdrawn his appeal.  In any event, while the Decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board[6]. Once a decision has been made by the Board pursuant to such an appeal, the Director’s decision in the notice of decision would be superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[7].  The Applicant had knowledge of this regime of appeal and had invoked those procedures, though he subsequently withdrew the appeal. 

15.  Even if there were changes in circumstances rendering it unsafe for him to return to Vietnam now (for example, he was subsequently informed by his wife that the moneylender had resumed harassing his family and repeating his threat), that could not be a valid ground.  This is because the time to assess the propriety of the decision sought to be reviewed is the time when the decision was made and not afterwards.  If there were changes in circumstances, which most probably would be his case, his only option is to make a subsequent claim under section 37ZO(2) and not to seek judicial review of the Decision which was properly made at the time it was made.  For the above reasons, there was no need to seek clarification from the Applicant if in fact that is his case.  It would serve no purpose to confirm something which is a non-issue.

16.  The function of this Court in this application is to scrutinise the Board’s Decision for errors of law, procedural unfairness and irrationality in the Decision.  The Board’s reason for allowing the Applicant to withdraw his appeal has been set out in its letter dated 28 June 2021 as quoted in paragraph 8 above.  The Board had regard to all the available information placed before it, obviously including the Director’s Notice and material annexed to it, the Applicant’s Notice of Appeal, the Applicant’s withdrawal letter, the Board’s letter dated 26 May 2021 and his lack of response.  As noted in paragraph 7, the information provided by Applicant’s wife is consistent with the Director’s finding that the moneylender had no intention to seriously harm or kill the Applicant and it was safe for him to return to Vietnam.  That was confirmed by the Applicant’s application to withdraw his appeal.  The information was provided by the Applicant based on information he received from a credible source, namely his own wife.   There was nothing to suggest to the Board that the Applicant’s decision to withdraw was made otherwise than voluntarily or as a result of misinformation, fraud, misrepresentation, duress or other vitiating factors.  It was open to the Board to allow the withdrawal.   Indeed, it would have been irrational not to and thereby deprive the Applicant his choice to return to his home country or delay his return.

17.  The Board acted with care and advised the Applicant the consequence of the withdrawal.  It informed him in no equivocal terms that if his application was allowed the decision of the Director in the Notice will stand and reminded him to seek independent legal advice.  The Board gave him four weeks to cool off or reconsider.  The procedure adopted by the Board was utterly fair.  Its conduct was entirely un-reproachable.  

18.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had all the circumstances; had correctly directed itself to the relevant legal principles relating to the application; had considered the relevant facts; and observed a very high standard of fairness.  The Board acted on the basis of what the Applicant asserted.  It could not have regard to what the Applicant now alleged that his life would be in danger if refouled.  It was on the basis that the Applicant had confirmed it was safe for him to return that the Board allowed his application to withdraw his appeal as he requested.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

19.  For the above reasons, leave to apply for judicial review was 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

[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 para 14(1)

[6] Section 37ZR of the Immigration Ordinance, Cap. 115

[7] [2018] HKCA 549