NGO THI HUONG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

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

Following:

1.   The Form 86 is amended on the Court’s own motion, and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 12 May 2021 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 27 April 2021 dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 October 2020 (the “Notice”) refusing their application for non-refoulement protection.

The Applicants’ claim

2.  The Applicants are Vietnamese nationals.  They are wife and husband, now aged 40 and 39 respectively.  Their personal background, the factual background leading to the present application, the basis of their claim, the arguments they advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  In gist, they claim, if returned to Vietnam, they will be harmed or killed by two moneylenders and their gangsters for being unable to repay their loans borrowed from them.

3.  The Applicants’ case is that towards the end of February 2019, they borrowed a loan of 200 million Vietnamese Dong (“VND”) at a monthly interest rate of 10% from each of the two moneylenders to start their boutique and shoe business. There was no fixed term for repayment under the loan agreements.  In August 2019, a fire broke out at the boutique shop.  They became unable to pay the monthly interest.  Towards the end of the month, they were abused by the moneylenders and their underlings and threatened with death.  About ten days later, they were intercepted by four strangers.  They assaulted the 2^nd Applicant with fists and kicks for about two minutes and threatened them with more serious beating next time.   On the following day, they reported the incident to the police, but the police took no action.  Out of fear for their safety, they fled to live with their relatives in Wang Mi City in Guangning Province (廣寧省汪秘市). 

4.  In early December 2019, when the Applicants returned to their abode, they found one of the moneylenders and her four underlings waiting for them.  They assaulted the 2^nd Applicant. Then the other moneylender and his four underlings also arrived.  The moneylenders remonstrated the Applicants for running away.  They allowed the Applicants until early January 2020 to repay their debts and reiterated their death threats.  Knowing that they could not repay, the Applicants fled to Hong Kong on 3 January 2020 via Mainland China.  They were arrested by the police on 22 February 2020 and made their non-refoulement claim on 10 March 2020.

The Board’s finding

5.  The Board found the Applicants’ written evidence sketchy and lacking in details bordering on being minimalistic.  Their case is made up of bald assertions.  At the oral hearing, they were unable to cure the defect by providing further details.  The Applicants had little education. They had, before their alleged business venture, only taken up simple menial work which did not require much skill.  The Board found it implausible that they would have entered into this new business without careful planning and preparation and without any know-how, experience, business connection or competitive edge in the trade.  They could not even describe how a typical day of their boutique shop business was like.  The Board found it implausible that the moneylenders would have lent them a loan equivalent to almost three times the average annual income of an ordinary person in Vietnam in 2019 without taking or at least asking for collateral.  It was implausible that the moneylenders would have believed in their ability to honour their promise of repayment.  It was also implausible that the Applicants would have realistically believed in their ability to generate enough revenue on their new business to keep up even with the interest payments, not to mention the loan capital.  The Board rejected their evidence as untruthful.  It found the moneylenders were fictitious, the loans, the business and the fire never existed.   It rejected their claim in its entirety.  It found they had failed to prove the factual basis in support of their claim for protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”). Hence, it dismissed their appeal and upheld the decision of the Director in the Notice.

The legal principles applicable to judicial review

6.  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[2].

Grounds for judicial review

7.  The Applicants had not advanced any grounds of application in their Form 86.  In their supporting affirmation, they only reiterated their fear and danger of being killed, if refouled to Vietnam.  In effect, they are challenging the finding of fact by the Board under the guise of judicial review.  That is impermissible unless the Board’s Decision is the result of errors of law, procedural unfairness or is irrational.  At the hearing, after the legal principles applicable to judicial review had been explained to them, they confirmed that he had no complaint about such vitiating elements.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

8.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the country of origin information.  It found the Applicants untruthful and rejected their case as mere fictions and their fears are not genuine.  It found that the Applicants had failed to establish the factual basis to support their claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicants failed to discharge their burden of proving their fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

9.  For the above reasons, the Applicants’ leave application 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