DO THI NGA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   The Form 86 was amended on the Court’s own motion; and

2.   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 18 May 2021 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 October 2020. The Court’s enquiries revealed that the Board had never made any decision in respect of the Applicant dated 30 October 2020, but had made one dated 7 May 2021 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision (the “Notice”) dated 23 February 2017 refusing her application for non-refoulement protection.  In fact, 30 October 2020 was the date of the hearing of the Applicant’s appeal before the Board.  The Board’s Decision was handed down on 7 May 2021.  Hence, on its own motion, the Court amended the leave application by substituting “7 May 2021” for “30 October 2020” as the date of the decision sought to be reviewed (the “Decision”).    

Background

2.  The Applicant is a Vietnamese national, now aged 58.  Previously, she had come to Hong Kong in December 2003, August 2009 and 23 October 2010.  Except for her first entry which was lawful, her other two entries were illegal.  She was repatriated.  Then, she entered Hong Kong illegally for the fourth time on 22 September 2014 and made a non-refoulement claim on 14 November 2014.  In due course, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “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 applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The Applicant’s personal background, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, she claims she will be harmed or killed, if returned to Vietnam, by a moneylender for being unable to repay two loans she borrowed from him.

4.  Her case is that she borrowed one billion Vietnamese Dong (“VND”) from the moneylender at the monthly interest rate of 20% in early 2002 and again in early 2003.  The moneylender was the son of an influential person in the government.  From early 2003 to late 2003, she was only able to pay part of the interest.  Then, the moneylender threatened to beat her to death.  She was subsequently beaten up by the moneylender’s men twice with wooden sticks.  Hence, she came to Hong Kong in December 2003 to avoid the risk of harm.  She was repatriated to Ho Chi Minh City on 16 January 2006. 

5.  She worked in Ho Chi Minh City until 2007.  After having borrowed 500 million VND from someone, she went to Hai Phong City and paid 200 million VND to the moneylender.  Then she started her own plastic beads factory in Hai Phong City.  A few days later, the moneylender’s men went to her factory.  They beat her up, smashed the glass doors of the factory and threatened to kill her if she did not repay.

6.  About a week later, the men came to her factory and demanded repayment.  Again, they beat her up.  After that, the Applicant ceased her business in Hai Phong City and moved to Ho Chi Minh City.  On 30 June 2009, she sneaked into Hong Kong.  She was deported back to Vietnam on 10 June 2010.  She sneaked into Hong Kong again on 23 October 2010.  She was deported on 31 August 2011.  Then on 22 September 2014, she sneaked into Hong Kong via Shenzhen.  She had never reported the threats and attacks on her to the police or the authorities.

The finding of the Board

7.  The Board seemingly accepted the Applicant’s factual case as she asserted, except for her unsupported belief that state protection would not be available.  On the basis of her case, the Board made some further finding of facts and assessed her claim on that basis.  The Board noted that apart from the first two assaults, the moneylender did not actively look for the Applicant to harm her.  It was the Applicant who chose to approach him in Hai Phong City more than a year after her deportation.  That was more than three years after she had defaulted on her loans.  Nothing happened to her between her repatriation in 2010 and her departure from Vietnam in 2014.  Also, nothing happened to her between 2007 when she ceased her business and August 2009.  Yet, she sneaked into Hong Kong. 

8.  The Board found the Applicant had not sustained any serious physical injuries.  The injuries did not attain the minimum level of severity as to amount to torture, cruel, inhuman, degrading treatment or punishment or constitute ‘torture’ within the meaning of section 37U(1) of the Immigration Ordinance. 

9.  It found her dispute with the moneylender was a private dispute and the injuries she suffered were not inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity nor was the Vietnamese government otherwise involved.  The injuries she suffered were not on account of race, religion, nationality or membership of a particular social group or political opinion as provided by the 1951 Convention Relating to the Status of Refugees. 

10.  The Applicant has not adduced any evidence that she would face capital punishment or that her life would be at risk of arbitrary deprivation upon her return to Vietnam.

11.  The Board also rejected the Applicant’s claim that state protection is not available as she had never reported the assaults and threats to the police.  There is no evidence that the police or the Vietnamese authorities would not take any action against the moneylender if she had made a report.  On the basis of authoritative and independent country of origin information (“COI”), the Board was satisfied that the Vietnamese government is fighting against corruption and improving professionalism in the police force.  It found reasonable state protection is available to the Applicant.

12.  Applying the law applicable to non-refoulement protection to the case as she asserted and the Board’s secondary finding of fact based on her case, the Board found the Applicant had failed to establish sufficient factual basis to support her claim for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal.

Legal principles applicable to judicial review

13.  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[6].

Grounds for judicial review

14.  The Applicant did not advance any ground for judicial review in Form 86.  In her supporting affirmation, she repeated the essence of her case and reiterated the danger to her life.  In effect, she is challenging the Board’s finding of fact that she would not be at risk of any of the proscribed harm, if returned to Vietnam.  That is not permissible in a judicial review.  In the absence of proper grounds or grounds with adequate particulars, the Court in an application for leave to apply for judicial review could only focus its attention on errors of law, procedural unfairness and irrationality in the Decision.

Overall scrutiny

15.  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 applicable to non-refoulement protection 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 analysed the evidence carefully, tested it against common sense and inherent probability.  It accepted the primary facts of her case as she asserted, except her bare assertion that state protection would not be available.  She had never reported the alleged threats and assaults to the police.  On the basis of authoritative and credible COI, the Board found despite corruption in the police force, the Vietnamese government had been fighting corruption and improving professionalism in the police.  It found reasonable state protection available.  It also made some secondary finding of facts on the basis of the factual case as she asserted.  The Board gave reasons for its finding.  It was on the basis of her factual case as she asserted and its secondary finding of fact that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere, save when such finding was made as result of error of law or procedural unfairness or irrationality in the Decision.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant had failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

16.  For the above reasons, on its own motion the Court amended the Applicant’s Form 86, but her leave application as amended 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