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HCAL 2317/2019
[2024] HKCFI 2862
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2317 of 2019
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BETWEEN
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Bui Van Thang |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 12 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 21 November 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 November 2016 (the “Notice”).
Background
2. The Applicant is a Vietnamese national. He entered Hong Kong illegally on 29 May 2015. He surrendered to the Immigration Department on 1 June 2015 and made a non-refoulement claim on the same day. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His application was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. He now applies for leave to apply for judicial review of that Decision.
3. However, he was removed and returned to his home country before his leave application came to be processed. Having considered the nature and grounds of the application, the issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by him with legal assistance and the record of his screening interview (the “ROI”) in the presence of his lawyer. In gist, he claims, if returned to Vietnam, he will be harmed or killed by a moneylender (the “moneylender”) for being unable to repay a loan borrowed from the moneylender.
5. The Applicant, now aged 30, was born in Ngu Lao Commune, Thuy Nguyen District, Hai Phong City, Vietnam. He is single. His parents and brother are living in Vietnam. His sister is a non-refoulement claimant in Hong Kong. He received formal education for 12 years. He had two years’ working experience as a taxi driver.
6. In June 2014, whilst driving his taxi, he knocked down and seriously injured a motorcyclist (the “victim”). The motor cyclist was hospitalised for three months and lost his ability to work as a result. He was responsible for the motor cyclist’s medical expenses of 300 million Vietnamese Dong (“VND”). He borrowed 250 million VND from the moneylender in August 2014 at a monthly interest of 5 million VND. He gave the money borrowed together with his own savings to the victim’s family as compensation.
7. He only made about 4 million VND a month as a taxi driver, which was not enough to pay the monthly interest. Eventually, he was unable to pay the monthly interest. Since December 2014, his moneylender had been demanding payment, but he ignored the demands.
8. In January 2015, whilst riding a motorcycle in Tuy Nguyen District, he was intercepted by the moneylender and his associates. They took him to an empty house. They stabbed his knee with a knife and beat him with batons. Then, the moneylender gave him a few days to pay the outstanding interest and threatened to kill him if he failed to repay or report the incident to the police. After the moneylender and his men left, he called his friend for help. He was taken to a hospital for treatment. He was discharged after one day. Then, he went to stay with different friends in Ngu Lao Commune to avoid the moneylender.
9. On his sister’s advice, he left Vietnam with a view to come to Hong Kong via Shenzhen. However, he was arrested by the police in Shenzhen and imprisoned for about 50 days. Then, he returned to Mong Cai in May 2015. After obtaining funds from his family, he sneaked into Hong Kong.
10. Whilst in Hong Kong, he learnt from his parents that the moneylender still kept approaching them for his whereabouts, but the moneylender never hurt his parents. He does not believe that the Vietnamese authorities and police could protect him, as they are corrupt. He does not believe internal relocation would be viable, because the moneylender could locate him throughout the country through his powerful network.
The finding of the Board
11. The Board scheduled an oral hearing for the Applicant on 26 September 2018, but the Applicant did not turn up. On the same day, the Board issued him a notice of its intention to determine his appeal in his absence together with a request for a written explanation for his failure to attend the hearing. The Applicant did not respond. Then, the Board determined his appeal in his absence.
12. The Board had concerns about several aspects of the Applicant’s evidence that required further investigation or clarification. For example, his ability to borrow or the moneylender’s readiness to lend such a large amount of money without security; and details of the negotiation for the compensation to the injured motor cyclist; the date and mode of his arrival in Hong Kong; and his general credibility. The Board understood it had the duty of joint endeavour with the Applicant to help him to prove his claim. As the Applicant failed to attend the hearing and explain his absence, the Board found it was denied the opportunity to test the veracity of the Applicant’s claim. In view of the Applicant’s breach of his duty of joint endeavour, the Board found he had failed to satisfy the burden of proving the factual basis in support of his claim. Hence, it dismissed his appeal against the Director’s Notice.
Legal principles applicable to judicial review
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[5].
Grounds for judicial review
14. The Applicant did not advance any grounds for review in Form 86. In his supporting affirmation, he reiterated his disagreement with the Board’s Decision. He also stated that he could not go back to his home country, as his life would be in danger over there. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove the factual basis in support of his claim, that is he would face real harm or real risk of harm if returned to his home country. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Conclusion
15. 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 found the Applicant incredible and considered a hearing necessary to test the veracity of his claim. It understood its duty of joint endeavor with the Applicant to enable him to establish his claim. To that end, it scheduled a hearing. But the Applicant did not attend the hearing, did not respond to the Board’s request for a written explanation and did not respond to the Board’s notice of its intention to determine his claim in his absence. The Board considered it had discharged its duty of joint endeavor, but the Applicant did not. In view of the inadequacy of the Applicant’s evidence, the Board could not be satisfied that the Applicant had established the factual basis in support of his claim. It therefore dismissed his appeal. These are finding facts solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm 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. Insofar as it is finding of the law, it is absolutely correct. 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 Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.
16. The Court does not have the Applicant’s contact address in his home country. The Order and Form CALL-1 are therefore sent to the Director of Immigration with a request that the Department will use its best endeavor to forward them to the Applicant.
Dated the 23rd day of October 2024
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( Seline Sze )
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 the Applicant’s 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 23/10/2024
Bui Van Thang
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 23/10/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5499/16/12/146/V726
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2195/16 (Formerly RBCZ 12008/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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 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”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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