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HCAL 2048/2018
[2022] HKCFI 2931
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2048 of 2018
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Nong Thi Ha |
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:
1. Leave to apply for Judicial Review granted; and
2. An injunction order restraining her repatriation to Vietnam refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 14 September 2018 (the “Decision”) rejecting her appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 27 September 2017 (the “Notice”).
2. In her Form 86, she also sought an injunction restraining her repatriation back to Vietnam. She did not identify the party against whom the injunction is sought, but she named the Director as a defendant in her supporting affirmation. Regardless of the party against whom this relief is being sought, as it is inappropriate to apply for injunction order by way of judicial review proceedings, this part of her claim is struck out as abuse of process.
3. The Applicant has not requested 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 the application be determined on paper without an oral hearing.
4. The Applicant is a Vietnamese national. She surrendered to the Immigration Department on 15 January 2015 claiming that she had entered Hong Kong illegally on 27 November 2014. On the same day, she raised a non-refoulement claim by written representation. In due course, her non-refoulement claims were assessed on four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 2 Risk[2], BOR 3 Risk[3]; and Persecution Risk[4]. By his Notice of Decision dated 27 September 2017, the Director rejected her claims on all grounds. The Applicant appealed the decision in the Notice. Her appeal was dismissed by the Board’s Decision. She now seeks leave to apply for judicial review of that Decision.
The Applicant’s case
5. 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 claimed that her life is at risk if returned to Vietnam, because a moneylender (the “Moneylender”) had threatened to harm or kill her for not being able to repay her loan.
6. The Applicant is now 47 years of age. She was born in Bac Giang Province in Vietnam. She had received three years’ education and had many years experience working and managing a poultry harm. She married her husband in 1991 and gave birth to one child. She also had another partner after separating from her husband. She has a daughter born out of that relationship.
7. In June 2010, the Applicant and her husband planned to raise funds to operate a livestock farm. Her husband could only borrow VND 20 million from a bank. The Applicant borrowed another loan of VND 60 million from the Moneylender at a monthly interest of 10% for a term of six months. They started the livestock farm in the same year. After paying interest for the first two months, their farm was struck by a plague. Most of their livestock died. Her husband pledged the cows for gambling and lost all their investment. Since then, the Applicant could not pay the monthly interest.
8. One morning after the Chinese new year in 2011, the Moneylender and three of his associates came to the Applicant’s home to collect interest payment. The Moneylender agreed to give the Applicant extension of time to pay, but threatened that she will be killed if she could not pay the next time he came.
9. The Applicant did not report the matter to the police for fear of retaliation. She separated with her husband because of the loan issue. She lingered in Huyen Yen The, Bac Giang and then went to stay with her friend in Mong Cai for two months. At the suggestion of her friend she sneaked into Dong Xing, China to take up employment.
10. In mid-2012, she learned about employment opportunities in Hong Kong. She paid VND 1 million to an agent to arrange a Chinese visa and Vietnamese passport for her. On the instruction of the agent, she returned to Vietnam from Dong Xing and re-entered Dong Xing via immigration channel on 20 September 2012. Then she paid her agent CNY 8,000 to arrange her bus ticket to Shenzhen and from there to sneak into Hong Kong by boat. She was arrested by the Immigration Department in December and repatriated back to Vietnam in October 2013 after serving her sentence. Upon her return to Vietnam, she stayed with her cousin in Bac Ninh Province for a few months. During that time, she learned from her mother than the Moneylender was still locking for her.
11. Towards the end of 2013, the Applicant went to Mong Cai. From there, she travelled in and out of Dong Xing illegally for work. After working for more than half a year and having saved enough money, she paid the agent to arrange for her Chinese visa and passage to Hong Kong again. This time, she paid VND 2 million for her Chinese visa and CNY 10,000 for the journey from Dong Xing to Shenzhen and then to Hong Kong. Upon arrival in Hong Kong on 27 November 2014, she surrendered to the Immigration Department and raised a non-refoulement claim.
The finding of the Board
12. The Board queried why the Applicant did not use the two sums, totalling VND 3 million and CNY 18,000, spent on her two trips to China to repay part of her debt owed to the Moneylender to settle her problem instead. It also considered the Applicant’s account in relation to her two trips to Hong Kong of having to return from Dong Xing to Vietnam and re-enter Dong Xing as instructed by the agent inexplicable. It thought her two trips back to Vietnam was totally unnecessary. It also gave no weight to the Applicant’s evidence about the Moneylender’s background and his visits to the Applicant’s home while the Applicant was in Hong Kong as hearsay.
13. Primarily because of the above queries and doubts on the first two issues, the Board considered the Applicant a dishonest witness and gave no reliance on her evidence. It found that these matters lay at the heart of her claim that she was in fear of harm and death because of the threats by the Moneylender. It could attach no weight to her evidence that a loan was incurred and the subsequent death threat administered and her fear of harm. The Board rejected her evidence. After considering the legal principles applicable to non-refoulement protection, it dismissed her appeal.
The legal principles applicable to judicial review
14. 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, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
15. The Applicant did not put forward any grounds in her Form 86. In her supporting affirmation, she exhibited the Decision and repeated the essence of her case and her fear. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Vietnam. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review unless the Decision is tainted by errors of law, procedural unfairness or irrationality.
Discussion and conclusion
16. In effect, the Applicant is challenging the Board’s finding of her credibility and its finding of fact as a result. Usually, such challenge stands little chance of success in a judicial review.
17. The centrepiece of the Applicant’s case is her debt owed to the Moneylender and his threat. The Board doubted why the Applicant would have spent VND 3 million and CNY 18,000 yuan on her trips to China instead of paying her debt and why she had to return Dong Xing to Vietnam and re-enter Dong Xing again. The Board held that these two issues lay at the heart of her claim. Hence, disbelieving her evidence on these two issues, the Board rejected her claims about the debt and the threat. With greatest respect to the Board, the propriety of such finding is highly arguable.
18. First, this Court could not see how these two issues lay at the heart of the Applicant’s claim. Besides, it is trite that even if a claimant fails to prove the centrepiece of his case, this does not mean her claim necessarily fails.
19. Second, the standard of proof required of a claimant is one of “more than a mere possibility” and not “highly likely”. If the evidence is consistent with the claim or if the claim is not inherently improbable, then the decision maker has to proceed to assess his claim on the basis that the evidence is true. In respect of the first issue, the Board queried why the Applicant did not use the money for the two trips to pay part of her debt. The debt was VND 60 million. The two sums totalled VND 3 million and CNY 18,000 yuan (or VND 62 million at the recent exchange rate of VND 1 million to CNY 290 yuan). However, the Applicant’s evidence has to be looked at in its proper context and with realism. It is not her case that she had VND 65 million at the time of her first trip in September 2012. She only had less than half that amount. That was also more than a year after she had defaulted payment since early 2011. She may not expect the Moneylender would settle for that amount, not to mention the interest which accrued during that more than one-year period in between. By the time she had saved the second sum, it was March 2014, three years after her default. The possibility of a settlement would be all the less. She would only be inviting trouble to expose herself to the Moneylender. Arguably, this finding of the Board is irrational.
20. Third, as for the second issue, the Board did not really know how these illegal trafficking operated. Anyone who had travelled between cities or provinces in the Mainland knows one cannot buy a bus ticket or train ticket without some proof of identity. My experience some ten to fifteen years ago is that travellers, even Mainlanders, entering a more affluent city (such as Shenzhen) from a less affluent city (such as Dongguan) were subject to identity checks. These identity checks are no longer in place in some cities now. Being a Vietnamese, the Applicant had to produce her Chinese visa for identity checks when travelling inter-city or inter-province during her trip from Dong Xing to Shenzhen. It is not difficult to imagine that she would have real and serious trouble if her Chinese visa has no record of entry from Vietnam via proper immigration channel into Mainland China. That explains why she had to first return from Dong Xing to Vietnam and re-enter Dong Xing through proper immigration channel. This Court is not seeking to take judicial notice of the above facts or making any finding of fact (which it may not) as it has no knowledge about the situation for inter-city travel between Dong Xing and Shenzhen at the material time. But there is no need to rely on judicial notice for the simple reason that the Board had no knowledge how these illegal trafficking operated. There was therefore no evidential basis on which the Board could find the Applicant’s account improbable and therefore she was dishonest; and as such dismiss the factual basis of her claim. Arguably, this finding is wrong in law.
21. Furthermore, there was no reason for the Applicant to lie about how she travelled to Shenzhen and then sneaked into Hong Kong. As the Court already noted earlier, how she travelled to Shenzhen could not go to the heart of her case as to justify a total rejection of her evidence, even if the Board were correct to find that she lied about her trip. Arguably, this finding is irrational.
22. Having found the Applicant dishonest and incredible, the Board rejected her factual case, the Board found she was not entitled to protection under any of the four applicable grounds. As the Board’s finding of the Applicant’s dishonesty and incredibility was solely based on the two issues, it is arguable that its Decision is tainted by error of law and irrationality. Accordingly, leave to apply for judicial review is granted.
Dated the 28th day of September 2022.
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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 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 28/9/2022
Nong Thi Ha
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 28/9/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8755/17/10/85/V1728
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2139/17 (formerly RBCZ 10325/15)
Department of Justice,
Senior Assistant Law Officer
(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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[3] 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”)
[4] 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
[5] [2018] HKCA 524 at [14(1)]
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