DAO MINH YEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 365/2022

[2024] HKCFI 2682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 365 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Dao Minh Yen (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 7 October 2021 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 November 2020 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  The DOI Decision was in Chinese while the Board’s Decision was in English. The Applicant completed the Form 86 herein (“Form 86”) in English without interpretation but filed her English Supporting Affirmation (“Supporting Affirmation”) with the assistance of an interpreter. On 13 June 2024, the Applicant filed an affirmation in Chinese also with the assistance of an interpreter applying to withdraw this intended judicial review application (“Withdrawal Application”). It seems that the Applicant has the ability to understand ordinary English but she will require interpretation for both English and Chinese documents. As such, I decide to issue this decision in English.

Background of the Applicant

3.  As set out in the DOI Decision and the Board’s Decision, the Applicant is a Vietnamese. She was born on 30 October 1999 in Bac Giang Province, Luc Nam, Vietnam.

4.  She received about 10 years of education and worked as a factory worker from 2016 to 2017. She started her grocery store in 2019.

The Claim

5.  The Applicant claimed that she borrowed VND 500 million (“Loan”) from a creditor (“Creditor”) in January 2019 to finance her grocery store business. She had to pay a monthly interest of VND 30 million with the principal to be repaid in 6 months.

6.  The Creditor was a loan shark with triad society background.

7.  She could not afford to pay the monthly interest after the first month.

8.  In March 2019, the Creditor came to her home with 11 followers to coerce the Applicant for interest payment. When she was unable to pay, they attacked the Applicant’s cohabitee (“LCT”) with fists, kicks and wooden sticks.

9.  They came again on the next day for payment. When the Applicant was still unable to pay, they assaulted LCT again. LCT suffered multiple injuries to his face, limbs and chest. He sought medication at the hospital.

10.  In April 2019, the Creditor demanded interest payment from the Applicant again. The Applicant was unable to pay. The Creditor threatened to assault her and destroy her house if she still did not pay in June 2019.

11.  The Applicant and LCT reported the attacks to the police at Luc Son who registered their complaint. After that, the Applicant did not hear from the police further.

12.  In June 2019, the Applicant made another payment of monthly interest to the Creditor.

13.  In January 2020, the Creditor and his followers came to the Applicant house and coerced the Applicant for repayment of the principal and interest. When she was unable to pay, they attacked LCT with wooden sticks, fists and kicks. The Creditor placed a knife near the Applicant’s neck and threatened to kill her if she did not repay in 3 months.

14.  In fear, the Applicant left Vietnam in March 2020 for Hong Kong via China. She claimed that she would be harmed or killed by the Creditor and his followers if she were to return to Vietnam.

Procedural history

15.  The Applicant left Vietnam on 2 March 2020 for China. From China, she entered Hong Kong illegally on 5 March 2020 and surrendered to the Immigration Department on 18 June 2020.

16.  By a written representation of 26 June 2020, the Applicant lodged the Claim.

17.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

18.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

19.  On 19 May 2022, the Applicant filed the Form 86 seeking leave for judicial review of the Board’s Decision. The Applicant named both the Board and the Director as proposed respondents in the Form 86.

20.  The Applicant filed the Supporting Affirmation also on 19 May 2022.

21.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.”

22.  The Board’s Decision was issued on 7 October 2021. As such, the Applicant had to file the Form 86 latest on 7 January 2022. The Form 86 was filed on 19 May 2022 and it was late.

23.  No application for extension of time to file the Form 86 was made by the Applicant but on 13 June 2024, the Applicant filed the Withdrawal Application applying to cancel her case because she wanted to return to her country.

24.  The Applicant was late for more than 4 months in filing the Form 86. This is a serious and substantial delay. As the Applicant has not applied for time extension to file the Form 86, no explanation has been provided by the Applicant for her late filing of the Form 86. There is no basis for the court to extend the time for the Applicant to file the Form 86 in this case. Solely on this ground, I shall dismiss this application of the Applicant for leave to apply for judicial review.

25.  For the sake of completeness, I also deal with the merits of the Applicant’s application below.

The DOI Decision

26.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by the Creditor upon her return to Vietnam.

27.  The Director noted that the Creditor did not actually assault or injure the Applicant on all occasions. The Creditor and his followers had the opportunities to seriously harm or kill the Applicant when they visited her home with weapons but they refrained from doing so. Every time, the Creditor would allow further time for the Applicant to make payment. This showed that the Creditor did not really intend to kill or seriously harm the Applicant. They only wanted to press the Applicant to repay the Loan.

28.  On the issue of state protection, the Director after considering the relevant country of origin information (“COI”) found that there might be some inefficiency or corruption problems within the Vietnamese police but there were objective indications in COI showing that the Vietnamese government took steps to improve the police force. The Director found that the Vietnamese government was able and willing to protect the rights of its citizens.

29.  Although the Applicant asserted that the Vietnamese police would not give her any protection, this was unsupported by any evidence. COI showed that the Vietnamese government would take actions against corrupt police. Her dispute with the Creditor originated from the Loan and it had nothing to do with the police or the government authorities. There was no basis for her to claim that the police would acquiesce to the Creditor’s illegal actions or fail to protect the Applicant.

30.  The Director further found that internal relocation would be viable. If the Applicant moved to Hanoi or Ho Chi Minh City, the Creditor would have great difficulty in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

31.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

32.  The Board after considering the Applicant’s claims including her claim form, the record of her interview with the immigration officer and her oral evidence given at the hearing before the Board, formed the view that the Applicant was not a witness of truth. The Board found that the Applicant’s case consisted of mere bare assertions with no objective proof. Having considered all the circumstances of the case, the Board found that the Applicant’s account of the core issues for her case lacked credence.

33.  The Board found that the Applicant’s testimony as to the assaults, death threats administered by the Creditor, and her claimed fears lacked credence. The Board found the Applicant kept embellishing her case. The Board rejected her evidence.

34.  In §§75-78 of the Board’s Decision, the Board set out its analysis of the Applicant’s evidence leading to its aforesaid findings.

35.  The dispute between the Applicant and the Creditor arouse out of the Loan. It was private and personal between the Applicant and the Creditor. There was no accepted evidence to suggest that the alleged pain and suffering was 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 as required under section 37U of the Ordinance.

36.  On basis of the COI, the Board found that the Applicant would be able to access to state protection in respect of harm threatened by the Creditor or his followers, if there was any.

37.  The Board did not consider that the Applicant faced risk of life danger contemplated under BOR 2 risk or there was a real or genuine risk of torture or ill-treatment contemplated under BOR 3 risk by anyone if she were sent back to Vietnam.

38.  The Applicant’s claim was not linked to race, religion, nationality, membership of a particular social group, or political opinion.

39.  As the Board found that the Applicant did not have a well-founded persecution risk in Vietnam, the Board did not find it necessary for the Board to consider the issue of internal relocation.

40.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

41.  In a judicial review, the court does not step into the shoes of the decision makers.

42.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

43.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

44.  In the Form 86, the Applicant put forward the following grounds for her intended judicial review:

(1)  internal relocation is not feasible for her because of her health and personality;

(2)  the Creditor may expand his power and branches all over Vietnam;

(3)  it is possible that in the future, she will be tortured, beaten, or even killed; and

(4)  it is wrong for the Board to rule that she was unreliable.

45.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.

46.  The Applicant claimed that internal relocation was not feasible for her. She provided no particulars nor supporting documents to substantiate her alleged difficulties for internal relocation. In fact, although the Board had discussed COI on internal relocation in §70 of the Board’s Decision, the Board did not find that it was necessary for it to consider the option of internal relocation for the Applicant in this case as the Board found that the Applicant did not have a well-founded fear of persecution in her hometown. There is no merit in this proposed ground of the Applicant.

47.  The Board found that the Applicant’s assertions lacked credence. After considering the COI and all circumstances, the Board was of the view that reasonably sufficient state protection would be available to the Applicant in Vietnam.

48.  In the Form 86, the Applicant only made bare assertions and speculations without particulars nor supporting documents. No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

49.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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 very high standards of fairness.

50.  The Board found the Applicant’s claims not credible for reasons set out in §§75-78 of the Board’s Decision. The Board did not accept that the Applicant or LCT had been harmed or ill-treated as alleged. Returning the Applicant to Vietnam would not expose her to a real risk that the Applicant would be ill-treated or at risk of arbitrary deprivation of life. These were all findings of fact made by the Board with supporting reasons. As pointed out in the Nupur Mst case (supra), assessment of evidence (including credibility), COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board and the Director. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board and I find none in this case.

51.  It was on such 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 under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

52.  The Applicant subsequently filed the Withdrawal Application on 13 June 2024 stating that she wanted to return to her country. She had no problem and was safe.

53.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

54.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

55.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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