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HCAL 991/2021
[2022] HKCFI 1819
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 991 of 2021
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Bui Ngoc Le |
Applicant |
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Torture Claims Appeal Board / |
1st Putative Respondent |
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Non-Refoulement Claims Petition Office |
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Director of Immigration |
2nd Putative Respondent |
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 refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application 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 23 October 2020 (the “Notice”)[1] and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 2 July 2021 (the “Decision”).
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[2] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[3]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.
3. The Applicant is a national of Vietnam, now aged 56. He entered Hong Kong on 24 June 2015 illegally and surrendered to the authorities on 30 June 2015. In mid-July 2015, he raised a non-refoulement claim.
4. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[4]; BOR 3 Risk[5]; Persecution Risk[6]; and BOR 2 Risk[7]. By a Notice of Decision dated 23 October 2020, the Director rejected his claims under all four applicable grounds.
5. He appealed to the Board against the decision of the Director in the Notice. By its Decision dated 2 July 2021, the Board dismissed his appeal (the “Decision”). On 14 July 2021, he applied for leave to apply for judicial review of the Decision of the Board.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by a loan shark, PHAM Van Tuan (“Pham”), if he was returned to Vietnam.
7. The Applicant claimed to have been sentenced to 18-month imprisonment by the Vietnamese government in 1987 for an immigration offence. After his release, he entered Hong Kong in 1989 and again in 1991 to seek refugee protection, but was deported to Vietnam on both occasions. He has two sons with his ex-wife and his family resides in Vietnam. He had worked in the reconnaissance unit of the former Vietnamese government during 1984-1987. After that, he worked as a driver between 1991 and 2012. Then, he operated a seafood business.
8. In 2012, the Applicant took out a loan of about VND 500 million from Pham at a monthly interest of VND 25 million for his seafood business. Under the agreement, there was no date fixed for repayment of the principal. He was able to pay interest until early 2015, when his livestock perished from the cold weather. Thereafter, he was unable to make payments.
9. Around March 2015, Pham sent men to look for him twice to thrice, but he happened to be out at the time. He learnt about these visits from his neighbours. In an afternoon in April 2015, Pham and six or seven of his men came to the Applicant’s home and demanded interest payments. They were armed with sabres and swords. The Applicant told them he could not pay because his livestock had perished. Upon hearing this, Pham and his men kidnapped the Applicant and beat him for two hours. He was released the next day after promising to come up with a way to pay. Pham warned him that they would kidnap him and his family unless he made payment. Pham took his truck as security, but its value was hardly enough for settling the debt owed.
10. Upon his release, the Applicant immediately fled to Mong Cai which was some 100 kilometres from his home. He stayed there for about 2 months. He treated the bruises all over his body with ointment. On 22 June 2015, he went to Mainland China on the strength of his Vietnamese passport. Then, he sneaked into Hong Kong on 24 June 2015. He did not encounter Pham or his men during this period.
11. His family made a report to the police in Tinh Quang Ninh but the police told them that the debt should be repaid and there was nothing they could do.
12. The Applicant learnt from his eldest son on 9 June 2020 that Pham threatened to cut off his fingers as repayment.
The finding of the Board
13. The Board found the Applicant incredible and did not accept his account. The Board identified the following improbabilities or inconsistencies in his evidence:
(1) The Applicant claimed that his seafood business gave him a profit of about VND 200 million every month. If that were the case, he could have repaid his loan shortly without having to continue the loan unnecessarily for almost three years at an annual interest of about 60%;
(2) The Applicant claimed that he put up his truck as security for the loan, but he also said that his truck was not worth much. The Board thought it improbable that Pham would have agreed to lend him money if he was not able to put up any adequate security;
(3) The Applicant testified that the loan was to be repaid in full with interest after two years (for a total of VND 1.1 billion). That was inconsistent with the terms of the loan as given by him in the NCF;
(4) The Applicant said in the NCF that he did not know Pham and he only learned about him from his neighbour. That contradicted his evidence before the Board that Pham was his neighbour whom he had known for fifty years;
(5) The Board did not believe the Applicant’s claim that he put the loan document in his truck because it was his own evidence that he kept important documents at home;
14. The Board found the Applicant incredible for repeatedly absconding. He was released on recognisance and was due to report to the Immigration Department on 24 February 2016. He absconded and did not prosecute his claim for non-refoulement protection. He was arrested more than four years later when he was found to have taken up unlawful employment using a false instrument. He was subsequently convicted of those offences on 9 May 2020.
15. The Board did not accept his evidence. It inferred from the above finding that the Applicant’s real purpose of coming to Hong Kong was to seek employment rather than non-refoulement protection. It found there was no basis to support the Applicant’s claim for non-refoulement protection and dismissed his appeal.
16. The Board further held that even if his case were accepted, the Applicant was not entitled to protection because of availability of state protection and internal relocation. It was the Applicant’s own choice not to seek police protection and there was no concrete evidence to suggest that the Vietnamese government would be unwilling or unable to offer him protection from Pham. In addition, as an able-bodied person with good working experience, it would not be unreasonable to expect him to relocate to other parts of Vietnam such as Ho Chi Minh city to avoid the risk.
Legal principles applicable to judicial review
17. 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[8]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
18. The Applicant gave the following grounds for his application in the Form 86:
“Decision(s) made in respect of my Non-refuolement Claims states all the details of my claim. I would be able to provide a copy of the same to the court upon my release from the Immigration detention. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.
I humbly ask this Honourable Court to grant leave to have the Decision judicially reviewed.”
In his supporting affirmation filed on the same day, the Applicant exhibited a copy of the Director’s Notice; but provided no other grounds or evidence in support. In substance, the Applicant is challenging the Decision on the usual grounds of error of law, procedural unfairness and irrationality. But he did not give any particulars.
19. At the hearing, the Court made repeated attempts to elucidate from him particulars of his grounds of review. He could identify no errors of law, or procedural unfairness or irrationality. He only repeated his case, his debt, his inability to repay, his fear of violence from Pham, lack of state protection and non-feasibility of internal relocation. He was only challenging the Board’s finding of fact on these issues.
Discussion
20. Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was 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; and observed a very high standard of fairness. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claims.
21. The Applicant’s claims are founded on his alleged debt owed to Pham and the threats Pham made against him and his family members. The Board carefully weighed the evidence and assessed the Applicant’s credibility. It found him incredible and his evidence inherently improbable. It did not accept his evidence about his debt, the threats to his life and his risks. As the Applicant bore the burden of prove of his claims, such a finding was fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. This conclusion was further supported by availability of internal relocation. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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.
22. The Court was satisfied that there was no error of law in the Board’s 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 Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
23. For the above reasons, leave to apply for judicial review was refused.
Dated the 17th day of June 2022
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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 his 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 17/6/2022
Bui Ngoc Le
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 17/6/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 17343/20/11/11/V2617
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 317/20 (formerly RBCZ 10270/20)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] The Director’s decision sought to be reviewed was not identified in the Form 86. However, a copy of the Notice of Decision dated 23 October 2020 was exhibited to the Applicant’s supporting affirmation. This Notice was therefore identified as the subject decision of the Director sought to be reviewed in the Form 86.
[2] Section 37ZR of the Immigration Ordinance, Cap. 115
[3] [2018] HKCA 549
[4] 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
[5] 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”)
[6] 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
[7] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[8] [2018] HKCA 524 at para 14(1)
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