NGO QUANG DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMNT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1317/2019

[2022] HKCFI 532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1317 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

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 12 February 2018[1] (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 13 December 2018 (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 and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. 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 had previously entered Hong Kong illegally and was repatriated back to Vietnam on 22 January 2014.  On 8 May 2014, he was arrested by the police for entering and remaining in Hong Kong without authority.  He claimed to have sneaked into Hong Kong on 8 May 2014 from Shenzhen.  On 22 May 2014, he lodged 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[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6].  His application was rejected by the Director’s Notice dated 12 February 2018. He appealed to the Board against the decision of the Director in the Notice.  On 13 December 2018, the Board issued the Decision and dismissed his appeal without conducting an oral hearing.  He now seeks to apply for leave to apply for judicial review of the Decision of the Board.

5.  The Applicant did not request an oral hearing in relation to his present application.  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.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form dated 30 December 2017 (the “NCF”) which was prepared by him with assistance of the Duty Lawyer Service.  In gist, his claim is based on his fear that, if refouled back to Vietnam, he will be harmed or killed by his parents’ moneylender.

7.  The Applicant is a Vietnamese national, now aged 39.  He had received education up to post-secondary level. He was married but has separated from his wife.  He has a daughter now living in Vietnam.  He had worked in the seafood business for about eight years.

8.  His parents borrowed a huge sum of money to support their seafood business in 2002.  In 2004, they refused to set up a joint venture with the government, which resulted in the government banning their seafood business.  Their business collapsed.  His parents were unable to repay the loan.  They suffered depression and died in January and March 2006.

9.  Then the moneylenders forced him and his sister to repay the outstanding loan.  They caused him to be assaulted on four occasions in January, February and May 2007.  Every time, he was fisted and kicked by four to six men.  In addition, during the attack in February, the assailants also assaulted him with a wooden pole and fractured his right shoulder bone.  He was hospitalised for one day.  He treated himself for the injuries suffered in the other attacks.  He did not report the assaults to the police.

10.  Seeing his deplorable situation, the Applicant’s friends financed his first trip to Hong Kong on 26 December 2013.  He was repatriated on 22 January 2014.  Then he fled Vietnam again on 5 May 2014. 

The finding of the Board

11.  On the basis of the Applicant’s evidence, the Board assessed his risk of harm to be low.  This is because though he was attacked on four occasions, the assailants assaulted him with bare hands on three occasions and a wooden pole on another.  He suffered minor injuries.  He was hospitalised for one day only for treating the fracture of his shoulder bone caused by one of the attacks.  His attackers outnumbered him and were armed.  From the fact that they did not cause him serious injuries, the Board found that the moneylenders had no intention to seriously harm him.  The moneylenders only intended to force the Applicant to repay.  They would not destroy their source of repayment.  The ill-treatment the Applicant received did not attain the minimum level of severity.  The Board found the assault arose out of a personal monetary dispute between the Applicant and the moneylenders which had nothing to do with the Vietnamese government or its public officials.  There was no evidence to suggest the ill-treatment was inflicted by state officials or at their instigation or with their acquiescence or consent.    

12.  Based on the Country of Origin Information (“COI”), the Board found that sufficient state protection is available to the Applicant.  It rejected his allegation that the authorities in Vietnam are corrupt and would only protect the interest of people in power but not the Applicant.  It also found internal relocation a viable option to avoid the harm and risk.

Grounds of application

19.  The Applicant did not state his grounds of application in the Form 86.  In his supporting affirmation filed on the same day, he wrote:

“I am requesting, Your Honour, to reverse the Decision of the Director of Immigration and torture claim appeal Board. The Decision made by the respondent is far bias and fail to provide beyond their available information.”

In essence, the Applicant is complaining that the Decision was bias and not supported by the evidence.  Hence, the sole ground of his application is that he disagrees with the Decision of the Board.  He did not give any particulars as to what is wrong with the Decision that calls for judicial review.  This application is an appeal against the finding of fact by the Board dressed up as a judicial review. 

The applicable legal principles     

13.  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[7].

Discussion and conclusion

14.  The Applicant’s sole ground of application is that he is not satisfied with the decision of the Director and the Board.  Other than a bald assertion of bias and lack of supporting evidence, he did not put forward any specific grounds in his notice of application.  As mentioned above, 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.  In the absence of specific or particularised grounds, the Court could only focus its attention on possible criticism of the Decision on the above basis.

15.  Though not so asserted in his Form 86 or supporting affirmation, to the mind of an unrepresented appellant, an adverse determination against him without a hearing might appear to be procedural unfairness or bias.  Whether to make the determination without a hearing had been considered in by the Board in paragraph 3 of its Decision.  The Board directed its mind to the principles as stated by Cheung CJHC in ST v Betty Kwan & Ors[8]. Having applied the six-point test in that case, the Board found a paper review was appropriate in the circumstances of the present case.  The Applicant was legally represented at the screening interview before an immigration officer.  He had all the benefits which legal representation could have afforded him.  The Board was able to take into account the submissions made by his legal representative.  In addition, this Court noted that the Board actually assessed his claim on the basis of his case as presented by him in the NCF and in the screening interview.  Pursuant to section 12 of Schedule 1A to the Immigration Ordinance and paragraph 15 of Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme, it is open to the Board to determine an appeal without hearing.  The Court agreed with the approach taken by the Board and its decision not to hold an oral hearing.  That decision was not irrational.  There was no error of law, procedural unfairness or bias in not holding an oral hearing.

16.  The Applicant did not identify the finding which he complained was not supported by evidence.  His claims are founded on his fear arising from the moneylenders’ threat to harm or even kill him.  The Decision of the Board was based on the Applicant’s case as asserted by him.  It was on the basis of his case that the Board found the risk of harm was low and his fear unfounded.  Based on the COI, the Board found that state protection and internal relocation are available to prevent or avoid the risk.  Hence, it was safe for the Applicant to return to Vietnam.  It was upon the application of the legal principles applicable to the four applicable grounds under the USM to the case as asserted by the Applicant that the Board found he had not proved his entitlement to protection under any of the four applicable grounds.  As the Applicant bears the burden of proof of his claims, such a finding is fatal. 

17.  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 quoted relevant precedents in support.  It correctly identified the factual and legal issues involved and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  This conclusion was further supported by availability of state protection and internal relocation.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  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.  The Decision was utterly without fault.  The Applicant’s grounds are not reasonably arguable.  His intended judicial review has no prospect of success.  Accordingly, his application for leave to apply for judicial review is refused.

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

[1]  The date of the decision mentioned by the Applicant in the Form 86 was 12 April 2019.  As the Court’s enquiries show, the only relevant notice issued by the Director is one dated 12 February 2018 which is the subject matter of the Decision of the Board.

[2] [2018] HKCA 549

[3] 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

[4] 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”)

[5] 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

[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[7] [2018] HKCA 524 at [14(1)]

[8] CACV 115/2013