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

HCAL 2776/2018

[2021] HKCFI 1293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2776 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.  The Applicant is a Vietnamese national.  She and her younger son (an adult) sneaked into Hong Kong from the Mainland on 6 October 2014.  She surrendered to the Immigration Department on 13 October 2014 and applied for a non-refoulement protection claiming that she will be harmed or killed by her loan sharks if returned to Vietnam.

2.  In due course, her non-refoulement claim was assessed on all three applicable grounds

then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].  By a Notice of Decision dated 16 August 2016 (the “2016 Notice”), the Director of Immigration (the “Director”) rejected her claims.  She appealed to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the 2016 Notice. The appeal was scheduled to be heard on 23 February 2018.

3.  In the meantime, a further applicable ground became available under the USM relating in particular to BOR 2 Risk[4]. The Director invited the Applicant to make further submissions in relation to this ground.  The Applicant did not respond.  On 28 February 2017, by a Notice of Further Decision, the Director rejected her claim under BOR 2 Risk ground (the “2017 Notice”).

4.  By the time of the appeal hearing, both the 2016 Notice and 2017 Notice were before the Board.  The Board heard the Applicant’s appeal against both notices together.  On 7 September 2018, the Board dismissed her appeal (the “Decision”). 

5.  On 5 December 2018, she completed a Notice of application for leave to apply for Judicial Review (“Form 86”) and applied for leave to apply for judicial review.  She did not identify the intended respondent in the Form 86 but stated that the relief is sought against an order or decision dated 28 February 2017.  As the above background shows, on the face of the Form 86, the Applicant is seeking relief against the decision of the Director in the 2017 Notice.

6.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the 2016 Notice or 2017 Notice because there are established procedures of appeal to the Board in relation to the Director’s decision in those notices and the Applicant has invoked those procedures.  Furthermore, the Director’s decisions in the two Notices were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[5]. For the benefit of the Applicant and in the interest of justice and efficient case management, the Court proceeded to consider whether there are good reasons in support of an application for judicial review of the Decision of the Board.  If there are merits in the application, the Court would amend the application making the Board the intended respondent. The Court also treated the complaints against the Director as directed at the Board also.

7.  The Applicant did not request an oral hearing. Having considered the papers, the Court was of the view that the application may be determined on paper without an oral hearing. 

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form and written submission which were prepared by her with assistance of the Duty Lawyer Service. 

9.  The Applicant’s husband borrowed 100 million Vietnamese Dong at a monthly interest of 20 million Vietnamese Dong (“the Loan”) from Phong to operate a timber business with a friend at the beginning of 2012.  In October 2013, her husband closed down the business as he suffered huge loss.  Her husband was unable to repay the Loan. One day, Phong and four muscular strangers visited the Applicant’s home.  He demanded payment of monthly interest by mid-November 2013 or he would kill their family members.  Then, they left.

10.  On 15 November 2013, Phong and five muscular strangers visited the Applicant’s home to collect payment.  The husband was unable to pay.  Phong requested their elder son to work for them as compensation.  The elder son refused.  A fight broke out.  The men damaged some furniture.  The husband’s canthus was injured and the elder son’s arm was slashed by a piece of broken glass.  Phong then warned the Applicant and her family that they would kill them next time, if they failed to repay the Loan.

11.  The Applicant’s husband reported the incident to the police.  Police said that they would give them protection.  But the Applicant did not notice any concrete action taken by the police.  Then, the husband and the elder son were found missing.  The Applicant and the younger son left their home and moved from place to place to avoid Phong.  In May 2014, the Applicant went to clean up her home, which she had deserted for some months.  She met Phong.  Phong warned her to repay the debt. She ran away.  Phong ran after her for a short distance and gave up. Eventually, the Applicant and her younger son went to Dongxing City in the Mainland and then sneaked into Hong Kong.

12.  The Applicant was released on recognizance on 10 December 2014.  She then met her elder son in Hong Kong in December 2014 and re-united with her husband in June 2016. 

The finding of the Board

13.  The Board considered the Applicant did not present herself as particularly believable or unbelievable but her story was adequate consistent as to the money lending and the series of debt collection incidents.  The Board effectively proceeded to consider her claims on the basis of her evidence.  The Board also considered Country of Origin Information (“COI”) based on credible sources, including the US Department of State: Country Reports on Human Right Practices of Vietnam 2015 published by the Bureau of Democracy, Human Rights and Labor, US Department of State; the UK Home Office: Country of Origin Information Report – Vietnam published by the United Kingdom Border Agency Home Office and some news reports.  From these COI, the Board was satisfied that despite the general situation of corruption in Vietnam, the government was committed to fighting corruption, improving police professionalism and capabilities, especially investigative capabilities, combating illegal money lending activities and improving protection to its citizens.  The Board was satisfied that state protection of a reasonable standard is available to Vietnamese citizens to prevent the risks. Essentially for this reason, the Board held that the Applicant has failed to substantiate her claims under all the four applicable grounds.  The more specific reasons relating to the four applicable grounds are summarised below.

14.  In relation to Persecution Risk, the Board found that the Applicant failed to establish the basic requirements that she will be subjected to persecution for a reason under the Convention Relating to the Status of Refugees.

15.  In relation to BOR 2 Risk, the Board could find no evidence to show that the sentence of death will be imposed on the Applicant.  Usually, under this ground, the claimant has to prove the home state is in breach of its obligation under the International Convention on Civil and Political Rights in respect of his absolute and non-derogable rights to life.  This risk is obviously not engaged in the present case.

16.  In relation to BOR 3 Risk, the Board found that Phong only wanted to collect his debt and had no intention of killing the Applicant or her family or ill-treating them physically or mentally beyond a minimum level of severity required to invoke protection against this risk.

17.  In relation to Torture Risk, the Board found that the injuries suffered by the Applicant’s family members failed to attain a minimum level of severity; that the injuries were inflicted by government official or with their acquiescence; that the Applicant and her family were not targeted by or of interest to the Vietnamese government; and that there is no report or evidence that the Vietnamese government would fail to discharge its duty or tolerate any unlawful and allusive behaviour committed by an individual, any government official and member of any political party as a systemic practice.

Grounds of application

18.  In her affirmation filed in support of her application, the Applicant asserted that life was very difficult in Vietnam; she was unable to find employment; she had no means to repay the Loan; the loan sharks will find her and kill her wherever she goes in Vietnam; and her life is in danger.  All these matters had been considered by the Board.  Except for her assertion that her life is in danger, the Board assessed her non-refoulement claim on the basis of her evidence and on the COI.  These are finding of facts within the province of the Board as the tribunal of fact.

19.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise 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[6].  The Applicant has not advanced any grounds in respect of these matters.  Having rigorous 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; correctly applied the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

20.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, 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 549

[6]  [2018] HKCA 524 at para 14(1)