DOAN THI HA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1030/2019

[2023] HKCFI 2307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1030 of 2019

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;

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 16 April 2019 for leave to apply for judicial review (the “leave application”) of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 29 March 2019 (the “2019 Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 January 2017 refusing her claim for non-refoulement protection (the “2017 Notice”). The 1^st Applicant is the mother of the 2^nd to 4^th Applicants who are triplets born on 2 June 2017 in Hong Kong. At the time of filing of the leave application, the Board has only made the 2019 Decision in respect of the 1^st Applicant and no decision has yet been made in respect of the 2^nd to 4^th Applicants until 18 September 2020 (the “2020 Decision”) one and half years later despite they were improperly named as co-applicants. By the 2020 Decision, the Board dismissed the 2^nd to 4^th Applicants’ appeal against the decision of the Director in his Notice of Decision dated 31 July 2019 refusing their claim for non-refoulement protection (the “2019 Notice”). It is the intention of the 1^st Applicant who represents the 2^nd to 4^th Applicants that their leave applications in respect of the 2019 Decision and the 2020 Decision shall be dealt with together. Obviously, the 2^nd to 4^th Applicants’ claim is founded on the same facts as the 1^st Applicants. In view of their familial relationship and the commonality in the issues raised, the Court also considered it expedient to do so and granted leave to amend the leave application by adding the 2020 Decision as one of the decisions in respect of which relief is sought and grant the 2^nd to 4^th Applicants leave to make the leave application out of time.

2.  As the 2^nd to 4^th Applicants are minors, the 1^st Applicant had been advised by letter of this Court dated 26 May 2022 to seek legal representation whether by the Legal Aid Department or private solicitors. Over 10 months have lapsed since the date of the Court’s letter and the 1^st Applicant has not taken any further steps to arrange legal representation. Having considered the merits of the application, the Court regarded the absence of legal representation as a mere irregularity and proceeded with issuing of this Form CALL-1. The Applicants did not request an oral hearing. Having considered the nature of the application and issues raised, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing, pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A).

3.  The 1^st Applicant is a Vietnamese national, now aged 29. She claimed she illegally entered Hong Kong via Mainland China on 27 April 2016. She surrendered to the Immigration Department on 28 April 2016 and raised her a non-refoulement claim. She also submitted claims on behalf of the 2^nd to 4^th Applicants by way of written signification on 25 March 2019, 10 April 2019 and 29 April 2019, respectively. In due course, their 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] and dismissed by the Director’s 2017 Notice and 2019 Notice. Their appeals against the Notices were respectively dismissed by the 2019 Decision and 2020 Decision of the Board.

The 1^st Applicant’s case

4.  The following account of the 1^st Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance from the Duty Lawyer Service and the record of screening interview attended by her in the presence of her lawyer. In gist, she claims that she would be ill-treated or killed by her creditor named Manh for being unable to repay a debt owed to him.

5.  The 1^st Applicant was born in Hai Phong, Vietnam. She is single and has received 13 years of formal education in Vietnam including one year in tertiary education in accounting. Soon after her graduation, she planned to open a garment shop in April 2015. In that connection, she borrowed 300 million Vietnamese Dong (“VND”) from Manh introduced to her by a common friend, VU. Manh is a loan shark with Mafia connection. The loan was intended to be a bridging loan of one month which she anticipated would be repaid by way of another loan from her elder brother and sister-in-law. Because of their common friend, Manh did not charge any interest. However, her brother and sister-in-law were unable to lend her the money because of their personal problems. The 1^st Applicant was unable to repay Manh. At first, Manh was accommodating and allowed her extension of time to pay until her business became profitable. Thus, the 1^st Applicant commenced her business in August 2015 and promised Manh a share of her profits. She invested the entire loan in her business and employed one assistant at a monthly salary of VND 3 million. However, since September 2015, Manh started demanding repayment every month, though on her request, he granted her extension of time to pay without threatening her.

6.  In February 2016, Manh and five to seven of his henchmen came to the 1^st Applicant’s home. They tore her hair, assaulted her brother and damaged some of their personal belongings. They threatened to destroy her stock and kill her if she continued to delay repayment. The 1^st Applicant managed to escape in the confusion while her brother was injured.

7.  The 1^st Applicant closed her shop in March 2016 and moved to her aunt’s place for refuge until she fled to Mainland China and then Hong Kong in April 2016.

8.  Manh and his associates continued visiting the 1^st Applicant’s home once a month to demand repayment. They threatened to kill her if they found her but did not beat up her brother or family members.

9.  The 1^st Applicant did not seek help from the Vietnamese police because the Vietnamese police was corrupt and would not help her without being paid a bribe. She does not consider internal relocation feasible as she does not know anybody outside of her village and Manh could locate her anywhere in Vietnam because of his Mafia connection.

The 2^nd to 4^th Applicants’ case

10.  The 2^nd to 4^th Applicants’ is based on the majority of the background facts as set out in the 1^st Applicant’s NCF. Thus, their case is also based on the fear of harm as alleged by the 1^st Applicant plus the additional information submitted by the 1^st Applicant on their behalf, such as they will be in danger of being located by Manh if they are refouled to Vietnam. Specifically, the 2^nd and 3^rd Applicants claimed they had cardiac problems which require medical treatment which is only available in Hong Kong but not in Vietnam.

The Board’s finding in the 2019 Decision

11.  An oral hearing was scheduled for the 1^st Applicant, but she did not attend. She did not respond to the Board’s request for explanation for her absence. The Board hence determined her appeal in her absence.

12.  The 1^st Applicant’s case is so full of inconsistencies and contradictions that the Board found it inherently incredible. The Board was also prevented from addressing its concerns by the 1^st Applicant’s absence at the hearing and failure to respond. The Board therefore found it unreasonable that the 1^st Applicant having just graduated from high school and completed an accounting course, would have borrowed such a huge sum of money from a loan shark to start a business which she has no experience of. It found it difficult to accept that Manh who was initially supportive and accommodating in August 2015 would become impatient a month later and demand repayment; that Manh who had been accommodating would suddenly turn aggressive and assault the 1^st Applicant and her brother in February 2016; and that the 1^st Applicant would not seek assistance from their common friend to resolve her problem. More importantly, even accepting her evidence, the Board found the ill-treatment she suffered did not attain the minimum level of severity and doubted if Manh really wanted to harm her as he took no steps to look for her after the February 2016 attack other than visiting her home and did no harm to her brother either.

13.  On the basis of authoritative and credible country of origin information, the Board found that while there are problems of police corruption, the Vietnamese government has achieved considerable results in combating police corruption. It rejected the 1^st Applicant’s claim that she could not obtain protection and that Manh could locate her anywhere in Vietnam through his Mafia network as speculative. The Board found adequate state protection available and internal relocation feasible.

14.  In respect of Torture Risk, the Board found the 1^st Applicant had failed to establish that there are substantial grounds for believing that she would be subjected to torture within the meaning of “torture” under section 37U of the Immigration Ordinance, if returned to Vietnam. In respect of BOR 3 Risk, it found the ill-treatment suffered by the 1^st Applicant, which in any event did not attain a minimum level of severity, arose out of a private monetary dispute and was unrelated to any grounds protected under BOR 3 Risk. It was therefore not satisfied that she would face any genuine or substantial risk of being subjected to such ill-treatment, if refouled. In respect of BOR 2 Risk, the Board could find no evidence that suggests that the 1^st Applicant’s right to life under BOR 2 would be violated. In respect of Persecution Risk, it found the 1^st Applicant’s alleged fear of ill-treatment falls outside the protection of Persecution Risk ground as it would not be on account of any of the reasons protected under the under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. The Board therefore came to the conclusion that the 1^st Applicant had failed to establish the factual basis in support of her claim for non-refoulement protection under any of the four applicable grounds under the USM and dismissed her appeal. Furthermore, the Board found in any event the 1^st Applicant could avoid the risk of harm by internal relocation.

The Board’s finding in the 2020 Decision

15.  The 1^st Applicant attended the oral hearing and appeared on behalf of the 2^nd to 4^th Applicants. Except for their risk of being located and harmed by Manh and the 2^nd and 3^rd Applicants’ alleged medical issue, their case is based on the same facts as the 1^st Applicant’s. To that extent, it is hinged on the 1^st Applicant’s case. The Board considered it may not re-open the 1^st Applicant’s case. In effect, it rejected the 2^nd to 4^th Applicants’ case based on their fear of harm from Manh. Having rejected their case based on their fear of harm from Manh, the Board found that risk non-existent. As for the 2^nd and 3^rd Applicants’ alleged medical issue, it is just the 1^st Applicant’s bare assertion, not supported by any medical evidence. The Board therefore found there was no objective evidence that their conditions require such specialist cardiac treatment which is only available in Hong Kong. Furthermore, the Board actually found there is at least one well-known specialist cardiology hospital in Ho Chi Minh City capable of providing specialist service in cardiology. There is no substance in these two grounds specific to the 2^nd and 3^rd Applicants.

16.  Though not so raised by the 2^nd to 4^th Applicants, the Board also considered their risk of discrimination by reason of their illegitimate status. It found from authoritative and credible country of origin information that as far back as 1996 illegitimacy was not considered to be at risk. The 2^nd to 4^th Applicants’ risk is further reduced by the fact that their natural parents have agreed to jointly take care of them. Furthermore, their natural parents are free to marry each other and legitimise their status.

17.  For the above reasons and the same reasons as it stated in the 2019 Decision the Board found that the 2^nd to 4^th Applicants had failed to discharge the burden of proving their entitlement to protection under any of the four applicable grounds under the USM. Hence, it dismissed their appeals and confirmed the Director’s 2020 Notice.

Legal principles applicable to judicial review

18.  The role 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. The court will scrutinize 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[5].

Grounds for judicial review

19.  The Applicants did not advance any grounds for judicial review in the Form 86. In their supporting affirmation, they reiterated their feared harm and danger to their lives, if returned to Vietnam. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it is safe for them to return to Vietnam. In effect, this leave application is an appeal against the finding of fact by the Board dressed up as an application for judicial review. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

20.  The 1^st Applicant is the sole factual witness in respect of the feared harm from Manh. She did not appear at the oral hearing scheduled for her appeal and declined giving explanation for her absence. Her case is so full of inconsistencies and contradiction that the Board found it inherently incredible and she did not attend the oral hearing to address the Board’s concerns. In the ultimate analysis, the Board found that she had failed to prove the factual basis in support of her claim. That also applies to the Board’s finding in respect of the 2^nd to 4^th Applicants’ case which is hinged on the 1^st Applicant’s case.

21.  The Board also considered the child specific claim of the 2^nd to 4^th Applicants separately from their mother’s, ie the 1^st Applicant’s. It rejected the 2^nd and 3^rd Applicants’ claim based on an alleged medical issue due to lack of supporting evidence. It considered the 2^nd to 4^th Applicants’ risk of discrimination by reason of their illegitimate status but dismissed that risk on the basis of authoritative and credible country of origin information. It was on the basis of all these findings of facts that the Board found the Applicants’ feared risk of harm unlikely to materialize, that state protection is available and that internal relocation is feasible. Hence, the Board came to the conclusion that the Applicants are not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds. These findings of facts are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality.

22.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 had also considered the child specific claim of the 2^nd to 4^th Applicants separately from their mother. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, their leave application 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