TRAN TRONG DAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2066/2018

[2023] HKCFI 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2066 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;

1.    Extension of time for the Applicant to apply for leave to apply for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 28 September 2018 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 3 January 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 January 2017 (the “Notice”).

2.  The application was filed almost nine months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was filed almost six months out of time. The application is deemed to include an application for leave to apply out of time.

3.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time:

(1)  length of the delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and

(5)  whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[2] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  The delay in this case is so substantial that leave may be refused on this ground alone.  Nevertheless, for completeness, the Court proceeded to assess the prospect of success in the proposed judicial review, which is the single most determinant factor in an application for leave to apply out of time.

4.  The Applicant is a Vietnamese national, now aged 37.   He entered Hong Kong on 20 April 2014 illegally and surrendered to the authorities on 12 May 2014.  On the same day, he raised a non-refoulement claim.  In August 2015, he was arrested for using a forged document and taking up illegal employment and sentenced to 15 months of imprisonment.

5.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 6 January 2017, the Director rejected his claims under all four applicable grounds.

6.  He appealed to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Board’s Decision dated 3 January 2018.  On 28 September 2018, he applied for leave to apply for judicial review of the Decision of the Board.  He 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. Both the Board and the Director were named as proposed respondents in the Form 86. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, the Form 86 is amended to the effect that the Board is the proposed respondent and the Director is the interested party.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that he would be harmed by a creditor known as 輝哥 (the “Creditor”) upon his return to Vietnam.

8.  The Applicant was born in Phuong Dong Khe, Vietnam.  He is married with a daughter.  He received nine years of education and has working experience in the meat industry and the construction industry. He started a construction material business in Ho Chi Minh City in 2006.  He borrowed VND 800 million from the Creditor in around late 2008 to expand his business at a monthly interest of VND 4 million and the principal was due after two years.  The Creditor had been his major client for about 3 years and was wealthy and well-connected.

9.  The Vietnamese government tightened the housing policy in around 2009.  As a result, the revenue of the Applicant’s business fell sharply.  He could not operate his business since February 2010 and could not pay any interest.  The Creditor called him in around October 2010 reminding him that the loan was due and that the Creditor would be sending his men to collect the debt.  The Applicant said he could not pay and asked for more time to pay.  The Creditor became angry and threatened to kill him if he failed to pay.

10.  In the evening of the next day, five or six men armed with metal rods and long knives came to the Applicant’s home and demanded payment.  The Applicant said he would sell his home but he needed time to come up with the money.  The men did not listen and damaged the furniture and other property in his home.  They threatened to kill him unless he paid all the interest and principal.  Similar harassments happened again two or three times in the same month.

11.  Towards the end of October 2010, five or six armed men of the Creditor came to his home again.  They beat him with metal rods and broke his left arm.  The attack lasted around 10 to 15 minutes.  He lost consciousness.  His wife and daughter were present at the scene but they were unharmed. The Applicant was hospitalized for a week and it took him one month to recover.  After his discharge from the hospital, the Creditor kept calling him and threatening to kill him.  Thus the Applicant decided to leave his home.  He fled to Mong Cai (which was about 1,000 km away) where he stayed about three years.  During that period the Creditor kept visiting his wife and threatening his family but did not assault them.  Because of the constant worry about the risk of being found by the Creditor, at the suggestion of his friend, he fled to Hong Kong.

12.  The Applicant’s wife and his daughter moved to a place some 2 to 3 km away from their home and did not hear anything about the Creditor.  He did not make any police report because the Creditor had called his wife while he was hospitalized and warned her that if he were to report to the police the consequences would be unimaginable.  The Applicant also believed the Vietnamese police was corrupt, ineffective and would require bribes from him before they would take any action.   He did not believe internal relocation would be viable because the Creditor would be able to locate him anywhere in Vietnam and he would not be able to secure a stable job to make a living.  Further, he would be constantly worried about being found and the psychological pressure would amount to torture.

The finding of the Board

13.  The Board apparently proceeded on the basis that the events relied on by the Applicant were true.  The Board noted that the Applicant was attacked on one single occasion only in 2010.  The Creditor and his men were armed with knives and could have wounded him with knife or killed him but they refrained from doing so.  They only punched him, kicked him and attacked him with metal rods.  It was clear that the Creditor only meant to put pressure on him to coerce him to pay but did not intend to kill him.  The Board found that the past threats and assault did not attain a minimum level of severity.  It did not accept that the ill-treatment the Applicant would face upon his return to Vietnam would attain a minimum level of severity or that he would face a genuine and substantial risk of being subjected to such ill-treatment.

14.  In relation to persecution risk, the Board considered that his dispute with the Creditor was purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion.  The risk was outside protection of the persecution risk ground and the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

15.  On the basis of credible Country of Origin Information, the Board found that state protection of an adequate standard is available to prevent or negate the risk and harm from the Creditor. It was satisfied that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens.  It was the Applicant’s personal decision not to file a police report and there was nothing to suggest that the Vietnamese police would have refused to take action had he done so.

16.  Furthermore, from the fact that the Creditor could not locate and harm the Applicant while he went into hiding in Mong Cai, the Board inferred that the Creditor had no means to locate him or to carry out the threats if he relocated to other parts of the country, such as Ho Chi Minh City, Hanoi or Mong Cai.  It also considered it reasonable for the Applicant to relocate himself to avoid the possible risk and that as a young healthy adult with years of education and work experience, it would not be difficult for him to do so.

17.  Applying the law applicable to non-refoulement protection under the USM to the facts in this case, the Board found that the Applicant had failed to prove his entitlement to protection under any of the grounds under the USM.

The legal principle applicable to judicial review

18.  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].

Grounds for judicial review

19.  The Applicant did not put forward any grounds in support of his application for leave to apply for judicial review in the Form 86.  In his supporting affirmation dated 28 September 2018, he repeated his fear that he will be tortured and even killed by his Creditor for not being able to pay his debt, if he were to be returned to Vietnam.  Basically, he is seeking to challenge the Board’s finding of fact, particularly its assessment of the risk he would be subjected to on his return to Vietnam, under the guise of judicial review.  That is not permissible.

Discussion and conclusion

20.  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 observed a very high standard of fairness.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice.  It correctly identified the factual and legal issues involved in the claims.

21.  The Applicant’s claims were founded on his alleged debt owed to his Creditor.  The Board seemingly assessed his claim on the basis of the case as he asserted.  The Applicant could not have any complaint about this finding.  However, it was on the basis of that finding that the Board was not satisfied that there was a real chance that he will suffer ill-treatment which would attain a minimum level of severity or would face a genuine and substantial risk of being subjected to such ill-treatment.  This is a finding of fact which the Board was entitled to make on the evidence.  As the Applicant bore the burden of prove of his claims, such findings were fatal.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM.  This conclusion was further supported by availability of internal relocation.  These are finding of facts which the court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality in the decision.

22.  The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The 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.  There are no vitiating elements in the Decision.  The Decision is utterly without fault.  The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

23.  In view of the total lack of merits in the intended judicial review, the Court did not find it necessary to investigate the reasons for the long delay, the relative prejudice to the Applicant and to the intended respondent as a result of the Court’s decision one way or the other.  Obviously, the application does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event.  For the above reasons, no extension of time was granted for filing the Form 86 and the application for leave to apply for judicial review was 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