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HCAL 1304/2021
[2022] HKCFI 1723
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1304 of 2021
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Ngo Thuy Hang |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative 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:
1. Leave to apply for Judicial Review refused; and
2. There be no order of the withdrawn application for leave to apply for Judicial Review.
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 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 September 2021 (the “Decision”).
2. The Applicant is a Vietnamese national, now aged 61. She surrendered to the Immigration Department on 7 July 2020, claiming to have entered Hong Kong illegally on 12 January 2020 illegally. Subsequently, she lodged an application for non-refoulement protection 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 9 November 2020 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim under all four applicable grounds. Her appeal against the Notice was dismissed by the Board’s Decision dated 3 September 2021. On 16 September 2021, she applied for leave to apply for judicial review of that Decision.
4. In March 2022, the Court received a letter from someone purporting to be the Applicant’s caseworker in International Social Service informing the Court that the Applicant wished to withdraw her application for judicial review. The writer also enclosing a letter in Vietnamese dated 21 March 2022 purportedly written by the Applicant. An English translation of the material part of the letter prepared by the Court Language Section reads:
“I am writing this letter to request to (illegible) my (illegible) because I want to go back to my hometown Vietnam due to my medical condition. I am looking forward to receiving your response, you can contact me by mail at the address below:”
5. The Court did not consider the letter adequately express the intention of the writer and the reasons for her intention to withdraw her application for leave to apply for judicial review, if that be her intention. The Court also considered it inappropriate to treat the ambiguous letter as a proper application to withdraw her application for leave to apply for judicial review. To ensure that her decision to withdraw is an informed decision made voluntarily and that the application to withdraw is properly made, the Court gave her directions to file a summons to apply for withdrawal together with a supporting affirmation stating how her danger and risk in Vietnam was resolved, whether she still anticipates any real chance of harm or ill-treatment if refouled to Vietnam and that she understands that if her application for withdrawal is allowed, the Decision of the Board shall be final. The directions were sent to her by post to the address as stated in her Form 86 and at the address she provided in her letter and copied to her caseworker. The Applicant did not respond. The directions sent to her address as stated in her letter was returned and marked “incomplete address/no such address”. The directions sent to her address in Form 86 was not returned.
6. In view of the urgency raised by the Court’s concerns about the Applicant’s medical condition and her desire to return to Vietnam, the Court considered it in her best interest to dispose of her application for leave to apply for judicial review expeditiously. 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
7. The following account of the Applicant’s case is mainly based on the information in her letters to the Immigration Department dated 7 July 2020 and 15 July 2020; the non-refoulement claim form (“NCF”) prepared by her with legal assistance; the record of her screening interview in the presence of her lawyer and her notice of appeal to the Board. In gist, she claimed that she would be killed or harmed by her moneylender, Nguyen, because she was unable to repay a debt owed to the him.
8. The Applicant was born in Haiphong, Vietnam. She had been married and had given birth to three sons. Her husband passed away in 2013. In December 2015, she borrowed 500 million Vietnamese Dong from a moneylender, Nguyen, at an interest of 20% per month for a period of 18 months for the purpose of operating her shrimp farm. She was able to pay interest for twelve months until December 2016 when her shrimp farm was destroyed by a flood. In January 2017, she asked Nguyen for time to repay and Nguyen gave her a month’s grace period. She could not repay. In February 2017, Nguyen and five men came to her home. One of them chopped her leg and the other four assaulted her with wooden poles. Upon seeing her bleeding, Nguyen and his men left hurriedly. The Applicant received eleven stitches in the hospital as a result. Out of fear for her safety, the Applicant fled her home to hide in various places in Haiphong for twenty-two months until December 2018. Then she fled to Mong Cai on 20 December 2019. From there, she entered Mainland China and then sneaked into Hong Kong in January 2020.
9. The Applicant said she was told by her aunt who continued to live in her home that during her twenty-two months’ hiding in Haiphong, Nguyen’s men had been visiting her home almost every day looking for her and threatening to kill her if they found her. Likewise, her second son also told her that Nguyen’s men had been visiting her home every half month looking for her and threatening to kill her.
The finding of the Board
10. The Board found numerous inconsistencies in material aspects of the Applicant’s evidence, including particulars of the loan, amount of interest, period of loan, which led the Board to the conclusion that her evidence was fabricated, incredible and inherently improbable. She gave a confusing and incomplete account of what she did for the three years while she fled from her home. The Board rejected her account about her loan, the moneylender and his men, the assault and threat. Basically, the Board found the Applicant had failed to discharge the burden of proving the factual basis in support of her claim to non-refoulement protection on all four applicable grounds under the USM.
11. The Board then went further and held, even on the basis of the account as asserted by the Applicant, that the injury or ill-treatment inflicted on her did not reach the minimum level of severity; and that Nguyen had no intention to harm or kill her. The Board assessed that the harm and risk the Applicant was likely to face on her return to Vietnam was low.
12. 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 Nguyen. It was satisfied that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens.
13. Furthermore, from the fact that Nguyen could not locate and harm the Applicant for the twenty-two months (actually three years) while she went into hiding in Haiphong, the Board inferred that Nguyen had no means to locate the Applicant to carry out his threat. It also considered it reasonable for the Applicant to relocate herself elsewhere in Vietnam to avoid the possible risk and that it would not be unduly harsh to expect her to do so.
14. 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 her appeal against the Notice.
The legal principles applicable to judicial review
15. 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[5]. Thus, absent 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
16. The Applicant did not put forward any grounds in her notice of application for leave to apply for judicial review or her supporting affirmation. Apparently, her ground for seeking judicial review of the Decision is that she disagrees with the Decision and it is unsafe for her to return to Vietnam. In the absence specific grounds or grounds with sufficient particulars, the Court would only focus on possible criticisms of the Decision on the basis of error of law, unreasonableness and irrationality.
17. 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. 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. The Board assessed the Applicant’s harm and risk on the basis of the case as she asserted. But even on that basis, it found she had failed to prove the factual basis to support of her claim for non-refoulement protection under any of the four applicable grounds under the USM. The Court could detect no error of law in the Decision or 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 her burden of proving her fears and risks. 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. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
18. For the above reasons, the Applicant’s application for leave to apply for judicial review of the Decision is refused.
19. Shortly after the above decision had been made and before this Form Call-1 was issued, the Court received a letter written in Vietnamese from the Applicant seeking to withdraw his application for leave to apply for judicial review. As the decision to refuse his application for leave had already been, the Court directed that the Form Call-1 be issued and no order be made in respect of the application to withdraw by letter.
Dated the 10th day of June 2022.
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( Allen LEE )
for Registrar, High Court |
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 his 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 10/6/2022
Ngo Thuy Hang
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 10/6/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17383/20/11/51/V2629
Director of Immigration
Putative Interested Party’s ref. no.: VRD 282/1/20, RBGI/1305/20
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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 para 14(1)
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