TRAN THI TINH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1189/2018

[2022] HKCFI 2856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1189 of 2018

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:

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 / the Non-Refoulement Claims Petition Office (the “Board”) dated 20 April 2018 (the “Decision”) dismissing her appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 August 2016 and 5 July 2017 (the “Notices”).

2.  The Applicant is a Vietnamese national, now aged 59.   She entered Hong Kong illegally on 16 March 2014 and was arrested on 18 March 2014.  On 23 April 2014, she raised a non-refoulement claim.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 5 August 2016, the Director rejected her claims under the first three applicable grounds.  On 16 June 2017, the Applicant was invited by the Director to provide further information on her claim based on BOR2 risk.  She did not respond.  By a Notice of Further Decision dated 5 July 2017, the Director rejected her claims based on BOR2 risk ground.

4.  The Applicant appealed to the Board against the Notices.  Both appeals were heard together on 9 February 2018.  On 20 April 2018, the Board issued the Decision dismissing her appeals.  She now seeks leave to apply for judicial review of that Decision.  The Applicant did not request 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.

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 she would be harmed by three moneylenders, Hoang, Doan and Nguyen (collectively, the “Moneylenders”) upon her return to Vietnam because of her inability to repay her debt owed to them.

6.  The Applicant was born in Haiphong, Vietnam.  She had two sons with her former partner.  In 1986, she started her business with her saving of VND 50 million.  She lent money to fishermen for buy fishing nets and in return they gave her preferential treatment when selling their catch to her. She would then re-sell the seafood in the market.  Her business went well until 2002 when the fishermen’s harvest dropped and were unable to repay their loans.  The Applicant was in financial difficulties and had to borrow from others to support her living.  She borrowed VDN 270 million at a monthly interest of 30% of the principal from Hoang, who was a notorious loan shark with triad background.

7.  In 2003, the Applicant and her partner separated.  She closed down her business to go to work in Taiwan.  She offered to repay Hoang with her earnings from Taiwan.  Hoang agreed.  She and her sons had no trouble from Hoang.  She returned to Vietnam in mid-2005 and paid Hoang as she promised, but she could not recall how much she had paid.

8.  In order to accelerate her repayment to Hoang, the Applicant borrowed VDN 400 million from Doan and VDN 450 million from Nguyen to repay Hoang and to buy speed boats and fishing equipment for expanding her fishing business.  Under the loan agreements, she had to pay monthly interest at the rate of 30% of the principal and to repay the principal and interest on a month’s verbal notice.  Her business went well between 2005 and 2010.  She was able to pay monthly interest.  Since early 2010, because of water pollution, the fisherman who used to borrow money from the Applicant had to fish in faraway waters and could not sell their catch to her.  The Applicant suffered loss and she defaulted on her loans.

9.  One night in early 2010, Hoang’s men came to the Applicant’s home to demand payment of interest.  They cut her left little finger as a warning.  She received stitches from a doctor and it took her several months to heal.  In order to make more money, she started pig farming.  She was not harassed as she was able to pay monthly interest.

10.  In around early 2014, the Applicant’s fishing harvest fell and her pigs died of swine flu.   She fell into financial difficulties and was unable to pay monthly interest.  The Moneylenders sent their men to the Applicant’s home to demand payment.  They were armed with sabers.  They harassed her, punched her, kicked her and forced her to eat faeces.  The Applicant could not stand the harassment and fled to another province (建安縣) three and half hours away by car.  There she worked as a domestic helper.  Upon the advice by her neighbour, she fled to Hong Kong in March 2014.

11.  The Applicant said that she could not obtain state protection.  She had complained to a local official (黃州社社長) about the attacks and threats from the Moneylenders.  On every occasion, he just gave her lip service and sent her home.  She did not make a report to the Vietnamese police because she believed the police would not intervene in money disputes and would not act without being paid a bribe.  She did not believe internal relocation would be viable because she could not move freely without the necessary papers and she had no one to support her in other parts of the country.

The finding of the Board

12.  The Applicant testified before the Board.  The Board found her evidence inconsistent with that given in her NCF.  It found the Applicant incredible and her account missing in important details, inconsistent and inherently improbable.  The Applicant was unable to provide important details as to how she used the proceeds from the loans, how much she owed and how much she had repaid the Moneylenders.  She gave different accounts of the interest paid and the interest rate.  She sometimes said the interest rate was 30% per month and at other times, she said it was 3%.  She could not explain the inconsistencies.  Whatever the interest rate, she could not come up with a calculation which tallies with the amount of interest she claimed she had paid.  She was vague and confusing as to the amount of principal repaid.  The Board also found her arrangement with Hoang for suspending payment for two years between 2003 and 2005 inherently improbable.

13.  In summary, the Board found the Applicant incredible.  It rejected her claims about having borrowed from the Moneylenders and having been ill-treated by them as completely false and fabrications on her own.  Accordingly, the Board found she had failed to prove the factual basis in support of her claim for non-refoulement protection under any of the four applicable grounds under the USM.

14.  Then, the Board went further and assessed the Applicant’s claim on the assumption that her case as she asserted were true.  Applying the law applicable to non-refoulement protection under the USM to the facts as the Applicant alleged, the Board found that the ill-treatment inflicted on her by the Moneylenders was to give her pressure to pay and that the Moneylenders had no intention to kill or seriously harm her.  It therefore assessed the risk of harm she would face on her return to Vietnam to be low.  It also found that the Moneylenders were not state officials and the ill-treatment on the Applicant was not inflicted with the consent or connivance of state officials. Hence, she is not entitled to protection under Torture Risk ground.

15.  In respect of BOR 2 Risk ground, the Board found the Applicant had failed to establish a personal and real risk of her absolute and non-derogable rights under BOR 2 being violated upon her return to Vietnam.

16.  As for her claim under BOR 3 Risk ground, the Board found, apart from the fact that her risk of harm is low, the harm she would face on her return to Vietnam would not attain the minimum level of severity.

17.  In respect of her claim under the Persecution Risk ground, the Board found the risk of harm to be low and that the reason for her persecution arose out of her inability to repay her loans in a moneylending transaction and not for any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion.

18.  Based on authoritative and credible country of origin information (“COI”), the Board was satisfied that adequate state protection is available.  Although corruption is prevalent in Vietnam, the government has been trying very hard to fight corruption, encourage complaints against corruption and government ineffectiveness, and prosecute corrupt officials.  On the basis of the COI, the Board also rejected her claim about not being able to internally relocate to other parts of Vietnam without the necessary papers as unfounded.  It considered the Moneylenders were small-scale operators within their respective localities and would not have the necessary resources to locate her outside their local area of operation.  The Applicant’s evidence also showed that she was able to move to another province and work as a domestic helper without any problems.  Hence, given her education and work experience, the Board found it would not be unreasonable to expect her to relocate to other parts of Vietnam.

19.  For the above reasons, the Board dismissed her appeal against the Notices.

Legal principles applicable to judicial review

20.  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]; Re Md Shohel Sheak[6];and Re Limbu Birkhaman[7].

Grounds for judicial review

21.  The Applicants did not advance any grounds for judicial review in the Form 86.  In her supporting affirmation, she only reiterated that her life is still in danger in Vietnam.  The Applicant had been invited by the Court via its letter dated 14 October 2020 to advise the Court of her first language, telephone contact number and to file submissions.  She did not respond.  The letter was not returned through the post.  There is nothing to suggest she had moved or has not received the letter.  She is deemed to have no submissions to make.

22.  In the absence of specific grounds of application, the Court in an application for judicial review 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. The essence of the Applicants’ complaint is that she disagreed with the finding of the Board that it is safe for her to return to Vietnam.  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.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

23.  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; correctly identified the issues and observed a very high standard of fairness.

24.  The Board found the Applicant incredible and rejected her evidence.  She has therefore failed to prove the factual basis in support of her claim.  Nevertheless, the Board went further and assessed her claim on the basis of the case as she asserted.  Even then, the Board found she was not entitled to protection.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.   It was on that basis that the Board found she had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely 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 Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault.  The Applicant’s application is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Hence, 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] 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 33 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 paragraph 14(1)

[6] [2018] HKCA 714 at paragraph 13

[7] [2019] HKCA 50 at paragraph 11