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HCAL 203/2021
[2024] HKCFI 1389
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 203 of 2021
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Nguyen Thi Hang |
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:
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 23 February 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 12 January 2021 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 August 2020 (the “Notice”).
2. The Applicant is a Vietnamese national. She entered Hong Kong illegally in October 2018. She was arrested on 9 September 2019 for entering Hong Kong illegally and taking up unlawful employment. On 1 February 2020, while serving her sentence, she raised a non-refoulement claim. In due course, her 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]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for 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 will be harmed by five moneylenders upon her return to Vietnam because of her inability to repay the loans she borrowed from them.
4. The Applicant, now aged 42, was born in Haiphong, Vietnam. She is married and has three children. She had seven years of education and has worked as a farmer and a factory worker. Her husband ceased working after 2015 because of his backbone problem. In 2016, she started selling seafood to support her family. She borrowed 200 million Vietnamese Dong (“VND”) at a monthly interest rate of 15% (ie 180% per annum) from a moneylender known as Linh to purchase seafood. Her business faltered. She was only able to pay interest for two months.
5. Then she borrowed money from four other moneylenders, namely Huong, Hoang, Dung and Duy in the amounts of VND 130 million, 180 million, VND 80 million and 80 million respectively. The interest rate charged by Hoang and Huong were 150% and 166% per annum respectively and that charged by Dung and Duy was 120% per annum. She was unable to give details of the dates when she took out the loans or the amount she repaid. She used the loan obtained to pay interests of other outstanding loans. As she did not have the means to repay the principal, hers debt kept piling up. Altogether, she borrowed VND 670 million from the five moneylenders and paid VND 205 million interest. As she could not repay, she was harassed and threatened by the moneylenders.
6. In around 2016, Hoang and two men demanded the Applicant for payment. Hoang beat the Applicant with his helmet for around ten minutes resulting in bruises all over her body (the “first incident”). It took her several months to recover. Several months later, Hoang went to the Applicant’s home and took away her motorcycle. He also threatened her (the “second incident”).
7. About one month after the second incident, Linh and her husband went to the Applicant’s home. They slapped her and threatened her.
8. Huong, Dung and Duy did not assault the Applicant. They only threatened to assault her if the outstanding loans were not repaid. Between 2016 and October 2018, the moneylenders visited the Applicant’s home once or twice a month.
9. Later, the Applicant fled to her friend’s home in Haiphong to avoid the moneylenders. Her friend arranged her passage to Hong Kong. She did not seek protection immediately after arriving in Hong Kong because she knew nothing about the non-refoulement procedure.
10. She does not believe the Vietnamese police would help her because the moneylenders would not forgo the outstanding debts and the authorities would not pay the debt on her behalf. She did not believe internal relocation would be feasible because the moneylenders would be able to locate her anywhere in Vietnam.
The finding of the Board
11. The Applicant testified before the Board. She made frequent changes in her testimony which led the Board to the conclusion that she was making up her evidence as she testified. The Board also found numerous inconsistencies among her evidence in the NCF, the screening interview and her oral testimony before the Board.
12. The Applicant told the Director that she took out all of the loans in 2016, but she told the Board that the loans from Duy and Dung were in fact taken out in 2018. According to her NCF and record of screening interview, the total amount of loan was VND 670, whereas the amounted stated in her witness statement was VND 560. The interest rate charged by the five moneylenders as calculated from the information in her NCF was 120% to 166 % per annum, but she told the Board that the five moneylenders charged the same interest rate of 150% per annum. She even fortified her answer by saying that she had shopped around for the best rate and only borrowed from moneylenders who charged 150%. As she had to pay interest to the moneylenders every month, the Board felt it was implausible that she would have gone wrong about the interest rate if in fact she had borrowed the loans.
13. The Applicant was unable to provide any details to substantiate her claim about operating a seafood business, such as where she operated the business, how she was able to carry on the business for over two years without a bank account.
14. According to the Applicant, she was unable to make interest payment a few months after she took out the loans in 2016. The Board found it inconceivable and implausible that she would have money to carry on the business when she was under such financial constraint.
15. The Board found her case about the loans inherently improbable when tested against authoritative and credible country of origin information (“COI”). The amount of loan by each moneylender was much more than the customary amount of around VND 100 million and at an interest rate lower than the customary rate of 180% to 300% per annum as reported in the COI. It is inherently improbable that the moneylenders would have lent such large sums of money to the Applicant, who had such a low income prior to asking for the loans and had no relevant business background to start a seafood business.
16. The Board also drew adverse inference from her failure to seek protection in Mainland China or immediately after arriving in Hong Kong. It found the Applicant incredible and that she fabricated her claim. Hence, the Board dismissed her evidence in its entirety.
17. Having dismissed the only factual basis on which her claim for protection is founded, ie the alleged loans and threats from the moneylenders, the Board found that the Applicant had failed to establish that she would be subject to any of the proscribed risks of harm upon her return.
18. However, the Board went further and assessed the Applicant’s claim on the basis of the case as she asserted. It found the alleged ill-treatments did not attain the minimum level of severity and there was nothing to suggest that the risks of harm to be inflicted on her in future would attain the necessary threshold. The use of force on the Applicant were not acts instigated, acquiesced, sponsored or condoned by the state. Her dispute with the moneylenders were private monetary disputes which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol. On the basis of the COI, the Board was also satisfied adequate state protection would be available to the Applicant and internal relocation would be viable.
19. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claim for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
20. 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
21. The Applicant did not advance any grounds for judicial review in the Form 86 or her supporting affirmation. She had been invited by the Court by its letter dated 15 December 2023 to inform the Court of her first language and to file submissions. She responded but did not file any submissions.
22. At the hearing, after explaining the legal principles in the above section, she confirmed that she had no particular complaints. In the absence of specific grounds of application, the Court in an application for judicial review 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.
Discussion
23. 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.
24. The primary basis of the Board’s Decision is that it found the Applicant’s evidence incredible and her case concocted. It rejected her evidence in its entirety. She had therefore failed to establish the factual basis in support of her claim for protection. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. 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.
25. The Board went further and assessed the Applicant’s claim on the basis of the case as she asserted. It found as a matter of law that she is not entitled to protection. It also found on the basis COI that state protection and internal relocation are available to prevent or avoid the alleged risk of harm if it turned out to be real. It was on that basis that the Board found that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds. This is the alternative or secondary basis of the Board’s Decision. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they 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. Insofar as they are finding of the law, they are absolutely correct. 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 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.
Conclusion
26. For the above reasons, the application for leave to apply for judicial review is refused.
Dated 22nd day of May 2024.
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( Allen LEE )
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 22/5/2024
Nguyen Thi Hang
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 22/5/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17142/20/8/13/V2534
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 251/20 (Formerly RBCZ 10205/20)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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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