LE THANH TUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 806/2021

[2021] HKCFI 2212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 806 of 2021

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 for leave to apply for judicial review of the decision of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 26 February 2021 (the “Decision”).

2.  The Applicant is a Vietnamese national.  On 19 January 2015, he was arrested for illegally remaining in Hong Kong and referred to the Immigration Department.  He claimed to have entered Dongxing City in Mainland China from Vietnam in November 2014 and then sneaked into Hong Kong.  On 4 February 2015, he lodged a non-refoulement claim asserting that he will be harmed or killed by his creditors if returned to Vietnam.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  By a Notice of Decision dated 12 November 2018 (“the Notice”), the Director of Immigration (the “Director”) rejected his claims under all four applicable grounds.  He appealed to the Board against the decision of the Director in the Notice.  His appeal was dismissed by the Decision of the Board dated 26 February 2021.  The Applicant now sought leave to apply for judicial review of the Decision.

4.  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 Applicants’ case

5.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service. 

6.  In about September 2013, the Applicant borrowed 300 million Vietnamese Dong from a loan shark for a term of one year for the purpose of starting a garment business.  However, his garment business failed since June 2014 and he was unable to repay his loan.  The loan shark and his money collectors came to his home to demand payment.  They were armed with knives and threatened to chop off his limbs and kill him if he did not pay.

7.  In July 2014, the Applicant sold his home and goods.  The proceeds were only sufficient to pay interest.  One day, the loan shark and the money collectors came to his shop and asked him when he could repay the capital.  When the Applicant asked for time, the loan shark attacked him with a broken beer bottle, while the money collectors assaulted with fists and kicks.  He managed to escape after one minute.

8.  The Applicant went to a hospital for treatment and then went to stay with his parents in Haiphong.  It took him six months to recover. 

9.  The Applicant’s wife and child stayed with her parents.  One day in August 2014, his wife told him that the loan shark and the money collectors visited her mother’s home and demanded her to disclose the Applicant’s whereabouts.  His wife insisted that she did not know his whereabouts.  The loan shark and his men pushed her to the ground.  His wife, who was then pregnant, suffered a miscarriage as a result. Out of fear, the Applicant fled to Hong Kong.

10.  In June 2015, the Applicant thought his problem in Vietnam was solved and applied to withdraw his non-refoulement claims.  Then he was informed by his aunt that his wife and child had gone missing.  He thought they were kidnapped by the loan shark.  He then realised that his problem was not yet solved and sought to re-open his non-refoulement claims.  He said that the loan shark and his money collectors visited his parents-in-law every month to check on his wife and his whereabouts, but he confirmed that his parents-in-law had never been troubled by the loan shark and his money collectors.  He did not know if his parents-in-law had made any report to the police for help. 

11.  The Applicant did not seek police assistance because he thought the police were corrupt and would not assist without being paid a bribe.  He did not think the government’s fight against loan sharking activities effective as he had no money to bribe the police.  He had no faith in the government’s protection of its citizens and in the public supervision of the police.  He did not consider internal relocation a viable option to avoid his harm because the loan shark could locate him wherever he goes. 

The finding of the Board

12.  The Board discovered significant discrepancies between the Applicant’s evidence before the Board and that stated in his NCF and screening interview.  There are discrepancies in the amount of loan borrowed, the interest paid, the principal repaid and the assaults.  The loan and the assaults are very significant events which one could not have mistaken, if one had genuinely borrowed the money and experienced the assaults.  The Board found the Applicant not credible and did not accept his evidence.  The Board did not believe the Applicant had borrowed money from the loan shark, had been chased after by the loan shark and assaulted for failure to pay.  Thus, the Applicant had failed to prove even to the low standard of proof the factual case to support his claim for non-refoulement protection.

13.  Even assuming that the evidence of the Applicant were credible, the Board considered the risk that he would be subjected to was low and that the feared harm does not meet the specific criteria under the four applicable grounds for non-refoulement protection.  On the basis of the Country of Origin Information, the Board also considered that state protection and internal relocation were available to prevent or avoid the risk.

Grounds of application

19.  In his supporting affirmation, the Applicant advanced the following grounds of application for judicial review:

“I did not agree with the decision of [the Board and Immigration Department] was refuse about my asylum, because they were very grossly unfair and unjust, so I need to submit this petition to Judicial Review to against with them.”

In essence, the Applicant is complaining against the finding of the Board on the basis that the Decision was “very grossly unfair” and “unjust”.  But he gave no particulars of the unfairness or injustice complained of.   These grounds are just bare assertions and appear to be complaints against the finding of fact of the Board dressed up as complaints of procedural unfairness or injustice.

14.  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, in the absence of specific grounds for application, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness, irrationality, and procedural unfairness.

15.  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.  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.  This conclusion was further supported by availability of state protection and internal relocation.  The Board’s 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, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  There are no such vitiating elements in the Decision.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

16.  For the above reasons, 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

[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 [14(1)]