LE VAN QUYEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 140/2022

[2022] HKCFI 1595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 140 of 2022

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 24 January 2022 (the “2022 Notice”) and the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 25 October 2018 (the “2018 Decision”).

2.  The Applicant is a Vietnamese national, now aged 32. He entered Hong Kong on 13 October 2014 illegally. He surrendered to the authorities on 20 October 2014 and raised a non-refoulement claim on the same day.

3.  In due course, his 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 January 2017 (the “2017 Notice”), the Director rejected his claims under all four applicable grounds. The Applicant did not advance any ground for judicial review against this decision.

4.  He appealed to the Board against the decision of the Director in the 2017 Notice. His appeal was dismissed by the 2018 Decision of the Board.  He did not pursue his appeal further and was repatriated back to Vietnam on 9 November 2018.

5.  The Applicant sneaked into Hong Kong again a year later in November 2019. He was arrested by the police on 14 December 2021. On 23 December 2021, he made a request for making a subsequent claim for non-refoulement protection under the USM, pursuant to section 37ZO of the Immigration Ordinance (the “Request”). At the invitation of an immigration officer, he lodged his written statement dated 8 January 2022 providing evidence in writing in support of his Request (the “Statement”). On 24 January 2022, the immigration officer issued the 2022 Notice refusing his Request.

6.  On 15 February 2022, the Applicant filed his application for leave to apply for judicial review of the 2018 Decision of the Board relating to his previous claim and the Director’s decision in the 2022 Notice relating to his Request to make a subsequent claim. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the 2022 Notice, the 2018 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 in the previous claim

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) 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 killed or harmed by his moneylender Tuan[5] because his was unable to repay a debt owed to Tuan.

8.  The Applicant was born in Haiphong, Vietnam and his family resides in the country. He received 9 years of education and has 9 years of working experience. He is married. In around July/August 2012, he borrowed VND 100 million from his friends and family to start a restaurant in Haiphong. He promised to repay them within two months but the business did not do well. He borrowed VND 150 million from Tuan to repay the loans owed to his friends and family and used the balance to keep his business afloat. Tuan is a loan shark and the leader of a gang of several dozen people. The Applicant was required to repay Tuan the principal and interest totalling VND 250 million after ten months from the date of the loan (i.e. by August 2013).

9.  The Applicant’s restaurant business experienced multiple setbacks and he suffered heavy losses in early 2013. In around late March 2013, Tuan visited the restaurant by himself and demanded the Applicant to repay VND 250 million in full. The Applicant said he needed time and Tuan gave him a week.

10.  About a week later, that was around 5 April 2013, Tuan came to the restaurant with three associates carrying iron rods. When the Applicant said he could not repay, they damaged the furniture in the restaurant and told him to repay or he and his family would be in danger. This incident occurred while there were around a dozen customers inside the restaurant.

11.  As a result of the damage caused, the Applicant could not operate his restaurant. Several days later, he fled to his parents’ home in Ho Chi Minh city to avoid Tuan. Nothing happened during his stay in his parents’ home. At the suggestion of his parents, the Applicant fled to Hong Kong on 13 October 2014, leaving his wife and children behind. He had not been troubled by Tuan during his 18 month’s stay in his parents’ home.

12.  After arriving at Hong Kong, he maintained weekly contacts with his family and learnt that Tuan was still looking for him.

The finding of the Board in the 2018 Decision

13.  The appeal was scheduled to be heard on 13 August 2018. The Applicant did not appear. He was invited by letter to submit a written explanation of his absence together with any documentary evidence in support within 7 days of the letter. He did not respond. The Board made the determination in his absence issued the 2018 Decision dismissing his appeal.

14.  The Board found multiple inconsistencies in material aspects of the Applicant’s evidence. It considered the Applicant incredible and his evidence unreliable. It rejected his account and dismissed his appeal. Basically, the Board found the Applicant had failed to discharge the burden of proving the factual basis in support of his claim to non-refoulement protection on all four applicable grounds under the USM.

15.  The Board then went further and held, on the basis of the account as asserted by the Applicant, that Tuan had no intention to harm or kill him as reflected by the fact that Tuan never harmed the Applicant during the two incidents and had not harassed his family for five years and four months between the second incident and the hearing of the appeal. The Board inferred from these facts that Tuan had no means to locate his family and hence assessed the risk of harm facing the Applicant and his family to be low.

16.  On the basis of credible Country of Origin Information (“COI”), the Board found that state protection of an adequate standard is available to prevent or negate the risk and harm from Tuan. It was satisfied that the Vietnamese government had taken steps to combat corruption and illegal money-lending; and that there are channels for Vietnamese citizens to complain about police misconduct. It found that it was the Applicant’s personal decision not to make a report to the police and there was nothing to suggest that the Vietnamese police would have refused to pursue his complaint if he had made a report.

17.  Furthermore, the Board noted that being an able-bodied adult with 9 years of work experience, the Applicant may safely relocate to Ho Chi Minh city and it would not be unduly harsh to expect him to do so.

18.  Applying the law applicable to non-refoulement protection under the four applicable grounds under the USM to the case as asserted by the Applicant and its finding on the availability of state protection and internal relocation, the Board concluded that the Applicant is not entitled to protection under any of the applicable grounds under the USM. Accordingly, the Board dismissed his appeal against the 2017 Notice.

The Applicant’s case in the intended subsequent claim

19.  The Applicant was repatriated to Vietnam on 9 November 2018. He sneaked back into Hong Kong a year later. It was only after his arrest on 14 December 2021, more than two years and one month after his return, that he made a Request for making a subsequent claim for non-refoulement protection. In his letter dated 30 December 2021, the immigration officer explained to him the law and procedures in making a subsequent claim. He told him that subject to eligibility test he was entitled to free legal representation by the Duty Lawyer Service and advised him to seek independent legal advice. He provided the Applicant with information about the Duty Lawyer Service. He requested the Applicant to provide him with evidence in writing that (a) there has been a change of circumstances since the previous claim was finally determined or withdrawn; and (b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success. That letter and its enclosures had been translated into Vietnamese for the Applicant’s convenience.

20.  The following is the gist of the Applicant’s case based on the information in his Request dated 23 December 2021 and his Statement dated 8 January 2022 providing further written evidence of change in circumstance in support of his Request. The Applicant lost a very large amount of money on a football bet in January 2019 soon after his repatriation to Vietnam. Then he borrowed two billion Vietnamese Dong for a term of 10 months from Nguyen Van Tuan (“Nguyen”) to repay the betting debt. He was unable to repay in October 2019 when the loan was due. Nguyen and his triad members threatened to kill him and chased him many times. Feeling that his life was not safe in Vietnam, he fled to Hong Kong.

The Director’s finding in the 2022 Notice

21.  The immigration officer made four findings in paragraph 8 of the 2022 Notice and gave his conclusion in paragraph 9. He said:

“8. After careful examination, it is noted that your claimed threat as mentioned in paragraph 7 above from Nguyen Van Tuan and the triad society members as you were unable to repay the money you owed him, has not been raised in your previous claim. This is about after you went back to Vietnam in 2018, you borrowed 2 billion from Nguyen Van Tuan in January 2019 but you failed to repay your debt …. Your bare assertion about Nguyen Van Tuan and the triad society members threaten to kill you as you could not repay him, in any event is considered to be not credible as you somehow managed to escape from their hands and flee from [his] country for Hong Kong again in November 2019. Besides, after you sneaked into Hong Kong in November 2019, your inaction to raise immediate protection not until you were arrested by the police cast doubt on the credibility of your claimed fear as mentioned above. Therefore, you bare assertion about your present fear from your creditor Nguyen Van Tuan and the triad society members stemmed from a private money dispute does not constitute a significant change of circumstance which would give the intended subsequent claim a realistic prospect of success. Besides, in your previous claim, the case officer of the ImmD and TCAB has fully considered the risk of returning to your home country because of your private money dispute with your past creditor and finally decided to reject your previous claim as mentioned in paragraph 6 above.

9. In the light of the above, it is not accepted that there has been a significant change of circumstances since your previous claim was finally determined. Even if assuming that there has been a significant change of circumstance in the country condition in Vietnam, such change, when taken together with other materials submitted in the Request and those submitted in support of your previous claim, would not give your intended subsequent claim a realistic prospect of success. The Request is therefore refused, i.e. you may not make a subsequent claim for non-refoulement protection under the USM.”

The legal principles applicable to judicial review

22.  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[6]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

23.  The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review. In his supporting affirmation, he averred:

“I do not agree with the Decision of Torture Claims Appeal Board so I want to file a judicial review against them because I can not return back now. My life will be danger over there so I hope to submit this petition to the court to judicial review.”

24.  Apparently, his ground for seeking judicial review of the 2018 Decision of the Board is that he disagrees with the Decision and it is unsafe for him to return to Vietnam. He advanced no ground in support of his application for leave in respect of the Director’s 2022 Notice. In the absence specific grounds or grounds with sufficient particulars, the Court would only focus on possible criticisms of the 2018 Decision and the 2022 Notice on the basis of error of law, unreasonableness and irrationality.

Leave for the 2018 Decision

25.  The 2018 Decision was issued on 25 October 2018. The Applicant was repatriated to Vietnam on 9 November 2018. He made no application for leave to apply for judicial review of the decision until 15 February 2022, more than three years and three months later. By then, he was three years out of time for seeking leave to apply for judicial review under Order 53, rule 4(1) of the Rules of the High Court. The delay is very substantial. For all that this Court knew from his Request and Statement, he had no explanation for the delay in seeking leave to apply. By reason of his very substantial delay and total lack of explanation alone, extension of time will not be granted for him to file this application, however strong his complaint might otherwise be: see Po Fun Chan v Winnie Cheung[7].

26.  Furthermore, the Applicant has advanced no arguable grounds for judicial review. The sole ground he advanced was he disagrees with the 2018 Decision and it is unsafe for him to return. However, according to his Statement, he lived without trouble or problem in Vietnam for more than a year before he fled Vietnam. He never complained about harassment by Tuan. But for his new gambling debt and loan, he would not have been threatened by Nguyen and fled to Hong Kong again. He made no complaint that he was at risk because of the threat and harm from Tuan which were the subject matters considered in the 2018 Decision. He advanced no argument or evidence as to what is wrong with the 2018 Decision or its making that calls for judicial review. Insofar as the 2018 Decision is concerned, the alleged new threat is not relevant because the time for assessing an applicant’s entitlement to protection is at the time of the making of the decision. At that time, there was no such threat. He raised no perceivable ground for review in respect of the 2018 Decision. His intended judicial review of the 2018 Decision has no prospect of success

27.  For the above reasons, leave to apply for judicial review of the 2018 Decision is refused. If he wishes to seek non-refoulement protection by relying on the new threat, his only option is to make a subsequent claim pursuant to section 37ZO(2) of the Immigration Ordinance. That is the subject matter of the 2022 Notice.

Leave for the 2022 Notice

28.  Unlike the case of the decision of an immigration officer made under section 37ZE(4), 37ZG(5), 37ZI(1)(b) or 37ZL(1) of the Immigration Ordinance for which there are prescribed procedures of appeal to the Board, the decision of an immigration officer made under section 37ZO(5) is not appealable to the Board. An aggrieved claimant may seek judicial review of such a decision on the grounds of error of law, procedural unfairness and irrationality. The Applicant advanced no grounds for judicial review. Accordingly, this Court would focus on these usual challenges in an application for judicial review.

29.  The immigration officer made four findings in paragraph 8 of the 2022 Notice, which formed the basis of his decision in the 2022 Notice refusing the Applicant’s Request to file a subsequent claim.

30.  First, he noted that the threat which formed the basis of the subsequent claim stemmed from the Applicant’s failure to repay a new debt owed to another moneylender which had not been raised in the previous claim. However, he also noted that the dispute is private in nature. Even if the moneylender were the same person, it would have made no difference. The new threat is of the same nature as the threat in the previous claim. These facts are incontrovertible. No criticism could be made of this finding.

31.  Second, the immigration officer considered the Applicant’s subsequent claim not credible because he could somehow manage to escape from the moneylender and flee to Hong Kong. With respect, that finding defies logic – an applicant has either to suffer actual harm or be killed if he is to be believed.

32.  Third, the immigration officer found the Applicant not credible because he only sought protection when he was arrested and not immediately upon having successfully sneaked into Hong Kong. Upon the Court’s enquiry, it was revealed that the Applicant was arrested on 14 December 2021. For two years and one month, he remained at large in Hong Kong without making any claim for protection. He gave no explanation in his Statement providing further written evidence in support of his request to file the subsequent claim why he had not made a claim as soon as he arrived Hong Kong. He knew about the protection under USM available in Hong Kong. He was familiar with the procedure as he had been through the non-refoulement proceedings. His inaction really cast serious doubts on the credibility of his alleged fear and risk. It was open to the immigration officer to find him not credible on this ground. In the absence of a credible explanation for the inaction, it would have been irrational for him to have found otherwise.

33.  Fourth, on the basis of these three findings, the immigration officer came to the conclusion that the Applicant’s bare assertion of fear and risk in the intended subsequent claim, which also stemmed from a private monetary dispute as those in his previous claim, does not constitute a significant change of circumstance which when taken together with the material previously submitted in support of the previous claim would give the intended subsequent claim a realistic prospect of success. He did not explain why he came to that conclusion. But it can be seen from paragraph 9 which followed that there are two bases in his reasoning.

34.  First, he did not believe the Applicant’s account about the new threat from Nguyen and hence there was no change in circumstance. That is a finding of fact based on his adverse finding of the Applicant’s credibility. That is the primary basis of his conclusion.

35.  Second, even if there were a change in circumstance, he considered the change was not significant and when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success. He was comparing like with like, ie a threat arising from a personal monetary dispute under circumstances in Vietnam. In referring to the 2018 Decision, the immigration officer was borrowing weight from the Board’s finding in the previous claim in relation to a threat of a like nature and effect and the availability of state protection and internal relocation in Vietnam as mentioned in paragraphs 16 to 18 above in support of his conclusion.

36.  In summary, the immigration officer did not find the Applicant’s claim of fear and risk credible and hence there was no change in circumstance; but even if there were, he found it did not constitute a significant change of circumstance which when taken together with the materials previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success. All these are finding of fact which is open to the immigration officer to make on the state of the evidence.

37.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.

38.  Having rigorously examined the 2022 Notice, the Request, the Statement and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer had correctly set out the law and key legal principles relating to the making of a subsequent claim under section 37ZO; correctly identified the issues; and properly analysed the evidence. The immigration observed a very high standard of fairness. He advised the Applicant on the law and procedure and the availability of the Duty Lawyer Service in prosecuting his Request. His communication was fully translated into Vietnamese for the Applicant’s convenience. He found the Applicant not credible and did not accept his account of the threat from Nguyen. He found there was no change in circumstance to entitle the Applicant to make a subsequent claim. Nevertheless, he proceeded to assess the Applicant’s claim on the basis of his case as asserted by him. It was on that basis that he found the change in circumstance when taken together with the material previously submitted in support of the previous claim would not give the intended subsequent claim a realistic prospect of success.

39.  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. Despite the blemish in his second finding, the immigration officer could not be criticised for the conclusion he reached. The Court could detect no error of law in the decision. The decision in the 2022 Notice did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The decision in the 2022 Notice was utterly without fault. The proposed judicial review has no realistic prospect of success. His application for leave to apply for judicial review is refused.

Conclusion

40.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the 2018 Decision and 2022 Notice 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