BUI VAN PHUC v. TORTURE CLAIMS APPEAL BOARD

HCAL 369/2018

[2020] HKCFI 99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 369 of 2018

 Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Vietnam who entered Hong Kong illegally in December 2014 and was arrested by police on 2 January 2015 for possession of a forged identity card and illegally remaining in Hong Kong, for which he was subsequently convicted and sentenced to prison for 15 months, during which he raised a non-refoulement claim on the basis that if he returned to Vietnam he would be harmed or killed by his creditors for failing to repay his loans.

2.  The Applicant was born and raised in Hải Phòng, Vietnam.  After leaving school he worked as a general labourer and continued to live with his parents in his home village.

3.  In 1993 his parents borrowed a loan from a local loan shark to start their own business by renting a place for breeding livestock, repayable the loans by monthly instalment with interest.

4.  However, they lost their business in 1994 when their place for breeding livestock was resumed by the government for the purpose of building a road, and asa result they started to have difficulty making their loan repayments to the loan shark, and for which they were constantly threatened, harassed and beaten by men sent by the loan shark.

5.  In 2002 the Applicant was approached by the loan shark and his followers with a demand that he should repay the loan for his parents or else he should work for them in their illegal activities, and when he refused, they proceeded to beat him with wooden sticks that he suffered injuries to his head and back and had to be hospitalized.

6.  Upon his discharge from the hospital, and as the threats and harassments from the loan shark continued, the Applicant eventually agreed to work for the loan shark smuggling cigarettes until 2006 when he was arrested by the police and was sent to prison for five years.

7.  Upon his release from prison in 2011, to avoid any further involvement with the loan shark’s illegal activities, the Applicant moved away from his home village to work in various other places, but one day in September 2014 he ran into some of the loan shark’s followers in Quảng Ninh who demanded that he should resume working for them, and when he refused, they beat him with wooden stick and kept him in a warehouse, but somehow he managed to escape to Hải Phòng where he made arrangement to leave Vietnam, which he did on 2 October 2014 when he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 5 May 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his creditors upon his return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that after all these years that it was doubtful that his creditors would still have any adverse interest in him, that his problems with them were all private monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 94 million people spread across a vast territory of more than 331,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Vietnam away from his home district in large cities such as Ho Chi Minh City where it would be difficult if not impossible for his creditors to locate him.

10.  By a Notice of Further Decision dated 10 March 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 23 May 2016, but for which he failed to attend an oral hearing scheduled on 24 November 2017, and when he later also failed to provide any explanation for his absence for the hearing, the Board proceeded to deal with his appeal on papers in his absence without re-scheduling any further hearing.  On 25 April 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found that as the Applicant did not appear at the hearing and had therefore given no evidence to support what he had written in his NCF, it was unable to decide on the credibility of his case or to estimate what risks he may face if refouled to Vietnam or to decide whether he would be entitled to non-refoulement under the applicable law, and concluded that his appeal failed on all applicable grounds.

13.  Somehow, some six weeks before the Board’s decision, the Applicant filed his Form 86 on 7 March 2018 for leave to apply for judicial review of the Board’s decision, and not surprisingly no ground for seeking relief was given either in his Form or his supporting affirmation of the same date in which he merely repeated his claim he would be killed if returned to his home country.

14.  Notwithstanding the absence of any grounds being put forward by the Applicant,and that he filed his Form 86 even before the Board had made its decision, the fact is that the Board did subsequent to his Form 86 dismiss his appeal, and as the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issues at hand, of which I shall proceed to do next.

15.  In the Board’s decision, the adjudicator gave the following explanations for his dismissal of the Applicant’s claim:

“ 9. Since I had decided that the matter could not be dealt with by a paper review, but required an oral hearing, it was for the Appellant to appear at such hearing and prove his case to the required standard.

10. The Appellant did not appear at the hearing. He has given no evidence to support what he has written in his Non-refoulement Claim Form, and I am unable therefore to decide on the credibility of his case.

11. It follows that I am unable to estimate what risks, if any, the Appellant faces if he is refouled to Vietnam or to decide whether or not he is entitled to non-refoulement under the provisions mentioned above.

12. His claims therefore must be dismissed.”

16.  It seems to me that the adjudicator’s sole reason for dismissing the Applicant’s appeal is due to the Applicant’s failure to attend the hearing to give evidence in support of his claim, without which the adjudicator claimed to be unable to make his determination of the various aspects of his claim.

17.  As noted above, the adjudicator did also earlier in his decision acknowledge that the Applicant’s appeal is “in fact a re-consideration of the matter from the beginning rather than a consideration of whether or not the Director’s decision is the correct one”: [4].

18.  It is therefore clear that, with or without any evidence from the Applicant given at the hearing of his appeal, the adjudicator in dealing with his appeal was required to properly review his claim based on all the available materials and information before the Board, and to make determination of facts with clear and cogent reasons, as mandated by the Guidelines for Handling Claims Made under Article 3 of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment which is relevant to the work of the Assessors, and the Brief Notes for Adjudicators (Torture Petitions) on Handling Petition Lodged by Unsuccessful Torture Claimants Under Article 48(13) of the Basic Law, which provide that high standards of fairness are required of the Assessors and the adjudicators in their investigation and determination of the claim, and explain how the adjudicator may determine an appeal/petition without an oral hearing as follows:

“ The Adjudicator assigned to handle a petition shall review the case based on available information and decide whether to conduct an oral hearing or whether the petition is to be handled by means of a paper review. An oral hearing may be dispensed with whether the adjudicator is satisfied that the petition can be justly determined on the papers. In deciding whether an oral hearing is needed, the adjudicator will take into account the circumstances of the case,including but not limited to consideration that all relevant evidence has been presented and the determination of the facts shall be based on clear and cogent reasons.”

19.  Furthermore, a determination of an appeal/petition under Article 48(13) of the Basic Law involves a rehearing of the matter determined by the Director and not an appeal from the Director’s decision, as held by McWalters J (as he then was) in AM v Director of Immigration[2014] 1 HKC 416, in which his Lordship elaborated how it should take place in paragraph 30 of his judgment:

“ A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of a witness and the taking of evidence. But, this will not always be the case. The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it. The process starts with the Adjudicator being provided with all the papers that were before the Assessor at which time the Adjudicator makes a preliminary decision on whether evidence needs to be called. If he decides it does not he must then go on to consider whether notwithstanding that the adjudication of the petition will be conducted only on the papers he nevertheless requires an oral hearing to determine the claim. This may be because he needs the assistance of the parties on some issue or, because of particular circumstances, procedural fairness dictates that an oral hearing take place.”

20.  As noted above, the adjudicator had clearly acknowledged that the Applicant’s appeal before the Board was a rehearing of his claim, and while the adjudicator was entitled to take into account the Applicant’s failure to attend the oral hearing without explanation as a significant or important factor in assessing his credibility, it seems to me that the adjudicator did not proceed to determine the claim on the basis of the information and materials which were before the Director and which had all been provided to the Board,or that if he did, it does not appear to have been based on any clear or cogent reasons in his decision dismissing the Applicant’s claim.      

21.  In the premises and for these reasons, I am of the view that the intended application for judicial review of the Board’s decision is reasonably arguable on the grounds stated above, and having met the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

22.  Accordingly, I grant leave to the Applicant to apply for judicial review of the Board’s decision based on the grounds stated, and direct that he shall file an originating summons within 14 days of his receipt of this decision, and to serve a copy with all the relevant documents on the Board as respondent and the Director as interested party.

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