NGUYEN HUY TRUONG AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2924/2018

[2023] HKCFI 2555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2924 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being present in open court;

1.  leave to the 4^th applicant to revive his application to be jointly considered together with other applicants’ joint application be granted;

2.  the applicants’ application for extension of time to file Form 86 to apply for leave to apply for judicial review of the Board’s Decision is refused;

3.  the 1^st, the 2^nd, the 3^rd and the 4^th applicants’ applications be dismissed;

4.  the 5^th, the 6^th and the 7^th applicants’ applications be dismissed;

5.  there be no order as to costs for the application.

THE APPLICATION

1.  There are altogether 7 applicants in this application.

2.  The 1^st applicant is the Husband, together with the 2^nd applicant (Wife), the 1^st applicant’s mother, the 3^rd applicant and their four sons, 4^th to 7^th applicants have made a joint application to apply for leave to apply for judicial review of the Decision dated 24 November 2017 (“the Board’s Decision”). Their joint application is late. I shall deal with this issue below.

3.  The applicants appeared before the Court on 20 March 2023. The 4^th applicant, aged 21, who had previously withdrawn his application, applied to join the application again because he has changed his mind and he wants his leave application to be considered together with other members of his family. His application for withdrawal remains outstanding and his leave application has not been dismissed by this Court.

4.  For better case management, leave is granted to the 4^th applicant to withdraw his previous withdrawal.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (the “Director”) is the interested party.

The applicants

6.  The applicants are nationals of the Vietnam. The 1^st applicant (Husband), together with the 2^nd applicant (Wife), brought the 1^st applicant’s mother, the 3^rd applicant and their three sons, 4^th to 6^th applicants, and entered Hong Kong on 27 November 2014. They were permitted to stay as visitors until 4 December 2014. However, they did not depart and had overstayed since 5 December 2014. On 11 December 2014, they surrendered to the Immigration Department.

7.  On 23 January 2015, the Husband lodged a non-refoulement claim on his own and on behalf of his aforementioned family members. On 19 October 2015, the 7^th applicant, the youngest son of the family, was born in Hong Kong. On 24 December 2015, the Husband also lodged a non-refoulement claim on the youngest son’s behalf.

8.  The family’s claims were made on the same basis. In gist, their fear of harm originated from an outstanding debt owed to the Husband’s creditor Nam. In brevity, the Husband borrowed a loan from the creditor on 20 June 2014 to fund his fish and shrimp farm as he did not have any collateral which enabled him to take out a loan from the bank. For the first five months, the Husband was able to make monthly interests payments on time. However, on 25 August 2014, due to pollution, all the fry in his pond were killed.

9.  On 23 October 2014, the applicants visited Hong Kong for sightseeing and returned on 26 October 2014. On 2 November 2014, Nam came with some gangsters and threatened to kill the Husband if he failed to settle the loan. The Husband offered Nam partial repayment first and Nam agreed. On 5 November 2014, the Husband’s cousin informed him of Nam’s second visit. As Nam could not locate the Husband, it was said that he posted a reward for the general public to disclose the Husband’s whereabouts. Since the Husband and his cousin’s reports to the police station were both of no avail, out of fear, the applicants decided to flee to Hong Kong for protection. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 31 May 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

10.  The Director considered the applicants’ claims in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(4)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.  By way of the Director’s First Decision, the Director dismissed the applicants’ claims on the grounds of Torture risk, Persecution risk and BOR 3 risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[14]; (ii) state protection would be available to them [15]-[18]; and (iii) internal relocation was a viable option [19]-[23].

12.  For reasons set out in the Notice of Further Decision dated 5 July 2017, the Director also found that the applicants’ right to life would not be violated and thus dismissed their claims on the ground of BOR 2 risk (the “Director’s Second Decision”).

13.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the Director’s Decisions.

The Board’s Decision

14.  The applicants appealed the Director’s Decisions to the Board. On 16 May 2017 and 26 September 2017 respectively, the Board conducted an oral hearing for their appeals, during which the applicants were legally represented. Meanwhile, as the Board noted that some of the family members also made independent claims, it directed that the Wife and the 3^rd applicant Grandmother should be given the opportunities to testify [21].

15.  The Board first recapped the applicants’ claims and their personal backgrounds [31]-[32]. Having considered the evidence and the legal submissions [33]-[40], the Board made the following findings:

(1)  The Husband’s evidence about his previous car business undermined the credibility of his claim. First, he was silent on the continuous operation of his car business in his non-refoulement claim form. Secondly, he stated at the hearing that he wished to repay Nam by using the profit from the car business whilst this information was not mentioned previously. Thirdly, it was illogical that, if the car business was as successful as claimed by the Husband, the Husband would still need to take out the loans from Nam [58]-[62];

(2)  His evidence on Nam’s connection with the gangsters was inconsistent [63];

(3)  His explanation of why he had to borrow the loan from Nam was unreasonable [64]-[65];

(4)  The Wife’s evidence that the Husband was unable to provide sufficient allowance for the family’s food also undermined the credibility of their claims [66];

(5)  The Husband’s evidence about the business and the sum required for the business was vague and contradictory [67]-[74];

(6)  The Husband’s knowledge about how to operate an aquaculture business was lacking, which cast doubt on whether the business indeed existed [75]-[81];

(7)  It was implausible that the family would take the first trip to Hong Kong for sightseeing, particularly when the family business was failing and a large sum of an outstanding debt [82]-[85];

(8)  The Husband’s evidence was inconsistent with the Wife’s evidence about the Wife’s knowledge about the aquaculture business and the debt [86]-[89]; and

(9)  The Husband also made a new claim about his friend’s assistance in negotiating a better payment terms with Nam, which was found to be fabricated [90]-[93].

16.  In light of the aforesaid findings, the Board considered that the inconsistences in the Husband’s evidence, the inconsistences in the Husband’s evidence and those of the Wife, and the implausibility of their evidence prevented it from being able to give the applicants’ the benefit of the doubt [100]. As a result, the Board concluded that the applicants’ claims were not credible [101].

17.  On the basis of lack of credibility, the Board rejected the applicants’ claims and dismissed their appeal.

Application for leave to apply for judicial review

18.  The applicants filed Form 86 on 20 December 2018 for leave to apply for judicial review of the Board’s Decision.

19.  In the 1^st applicant’s affirmation in support of their joint application, the applicants have raised the grounds below.

(1)  The Board had relied upon the discrepancies of their evidence given in the screening process and at the hearing to come to its conclusion that the 1^st applicant’s evidence was not credible. However, the discrepancies were caused by the nervousness in giving evidence and translation problem. These discrepancies are minor or immaterial. The Board’s views on the evidence is subjective and erroneous.

(2)  The adjudicator adopted his own personal views on raising prawns to discredit the 1^st applicant’s experience, the adjudicator being not an expert himself. This is unfair to the applicants.

(3)  The Board had placed much weight on the reasonableness of some of the 1^st applicant’s decisions on business to discredit the genuineness of his evidence. This is the wrong approach.

(4)  The Board had given no weight on the family’s fear of being harmed or killed by Nam, the creditor. This is wrong as fear is very much a subjective personal feeling, which the Board should be in no position to discount.

(5)  The Board had given no adequate consideration to the corruption of the police and weak state protection for the applicants.

(6)  The Board has also underestimated the difficulty in an internal relocation and the risk of Nam tracing them through their connection with the police.

(7)  The delay of this application is due to the late information from their solicitor, who had assisted them pro bono and their lack of resource of getting legal assistance themselves. Their ignorance of the language and the law is also the reason for the delay.

DISCUSSION

20.  The 1^st to the 4^th applicants are adults; the 5^th, the 6^th and the 7^th applicants are under 18 years old and they are minors.

21.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 20 March 2019. The delay is 9 months. I shall first consider the merits of the applicant’s case.

22.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

24.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 4^th applicant explained the reasons for his application for revival of his application and joining the family’s application. The applicants had made no other submissions.

25.  It is clear that the Director and the Board had considered the applicants’ claim as a composite claim, without having regard to the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

26.  However, as the applicants were legally represented at the hearing, the caution in Fabio’s case that because of lack of legal representation, the children’s specific claim had not been put forth to the Board for separate consideration is not applicable to this case. Also, there is no special feature in this case that should cause the Board to pay special attention to the child-specific claims. I therefore find that the Board was entitled to deal with the evidence and materials before it. As the legal representative did not submit any child-specific issues for the Board’s consideration, the Board might simply consider the applicants’ claims as a composite claim, which have caused no prejudice to the children.

27.  The 1^st applicant’s grounds as set out in paragraph 18, supra will be considered below.

(1)  Grounds (1), (2) and (6) are within the province of the Board in the assessment of the evidence. See Kartini’s case above. The Board was entitled to have its discretion as to what evidence should be given what weight. The expertise on prawn raising involves the adjudicator’s own experience. The issues raised by the Board are the technical issues in this subject, which the 1^st applicant did not dispute in the hearing. The Board was entitled to assess the 1^st applicant’s evidence, based upon the technical issues not in dispute. This is within the Board’s province that the court should not interfere with.

(2)  Ground (3) is the personal view of the Board, which is a common-sense approach. Whilst the Court of Appeal has warned that the application of common-sense should be adopted with caution, bearing in mind the foreign custom and traditions or difference in thinking. There are no such elements in this case. The Board was quite entitled to exercise its common-sense in the assessment of the evidence.

(3)  Ground (4) does not assist the applicants. The Board did not accept the alleged risk of harm by the creditor if they return to their country and considered that state protection and internal relocation should alleviate such risk. The feeling of pain or fear is subjective. But the factors that caused the feeling of fear are objective. The Board was entitled to assess the objective factors of the case to determine whether there should be circumstances that would cause fear to the applicants.

(4)  As to ground (5), the Board had considered this factor in paragraphs 94-96 of the Board’s Decision.

28.  I find that the applicants are unable to raise any valid reason to challenge the Board’s Decision.

29.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

30.  The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

DISPOSITION

31.  I shall make an Order in terms as follows:

(a)  leave to the 4^th applicant to revive his application to be jointly considered together with other applicants’ joint application be granted;

(b)  the applicants’ application for extension of time to file Form 86 to apply for leave to apply for judicial review of the Board’s Decision is refused;

(c)  the 1^st, the 2^nd, the 3^rd and the 4^th applicants’ applications be dismissed;

(d)  the 5^th, the 6^th and the 7^th applicants’ applications be dismissed;

(e)  there be no order as to costs for the application.

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