HOANG THI TUOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2235/2018

[2023] HKCFI 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2235 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;

1.  Leave to amend the Form 86 to the effect that the Director of Immigration be named as an interested party granted; and

2.  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 by Form 86 filed on 15 October 2018 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 10 October 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 May 2017 (the “Notice”). Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Form 86 is amended to the effect that the Director be named as an interested party instead of a proposed respondent.

2.  The Applicant is a Vietnamese national, now aged 54. She had previously been arrested by the police on 11 November 2013 for remaining in Hong Kong without authority and then repatriated back to Vietnam on 4 December 2013. She entered Hong Kong illegally again on 14 November 2014 and was arrested on 16 November 2014. On 3 December 2014, she raised a non-refoulement claim.

3.  In due course, her non-refoulement claim was 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 18 May 2017, the Director rejected her claims under all four applicable grounds.

4.  She appealed to the Board against the decision of the Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of the Board’s Decision. She did not request an oral hearing. 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

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed by a loan shark (the “loan shark”) upon her return to Vietnam.

6.  The Applicant was born in Haiphong, Vietnam. Her husband and their two sons are living in Vietnam. She received six years of education and has eleven years of working experience in the fishing industry.

7.  The Applicant said that she borrowed around VND 500 million at a monthly interest of VND 10 million with no fixed date for repayment of principal from the loan shark who was a well-known triad member. The loan was used to buy a ship and other equipment for her fishing business. She was able to pay monthly interest until August 2014. Then, her ship and equipment were destroyed by a typhoon in early September 2014. She had to close down her business.

8.  In the coming one and half months, the loan shark sent six to seven men to her home to harass her on a daily basis. In five or six such visits, the men attacked her and her husband with hands and wooden sticks. They suffered bruises and scratches. They treated themselves with painkillers and ointment. It took them one to three weeks to recover. On the last occasion, the loan shark threatened that unless they repay the loan and interest by mid-November 2014, he would first kill the Applicant because she had signed the loan agreement and then her husband.

9.  The Applicant knew she would not be able to come up with the money. Upon the suggestion of a middleman, she went to Mong Cai from where she fled to Dongxing, China and then to Hong Kong. Her husband hid himself in southern Vietnam. He was able to escape from the loan shark because he was not the person who signed the loan agreement. Their two sons are living with her mother and have not been harmed by the loan shark.

10.  The Applicant did not report the incident to the police because she believed she was at fault for failing to make payment. Also, she was concerned that if she made a report, the loan shark would cause her and her husband further harm. She believed internal relocation not feasible because the loan shark could locate her through his network.

The finding of the Board

11.  The Board assessed the Applicant’s claim on the basis of the case as she asserted. On the basis of low intensity of harm (being just bruises and scratches) and low frequency of ill-treatment, the Board found the Applicant’s future risk of serious harm upon her return to Vietnam to be low. It found that the main purpose of the ill-treatment was to exert pressure on her to pay the debt and the loan shark had no real intention to severely harm or kill her.

12.  It also found the loan shark and his men were non-state actors. Their use of force on the Applicant were not acts instigated, acquiesced, sponsored or condoned by the state. In relation to persecution risk, the Board held that her disputes with the loan shark had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

13.  On the basis of authoritative and credible Country of Origin Information (“COI”) the Board found that the Vietnamese government had taken steps to combat corruption and illegal debt collecting and there are channels for the citizens to complain against police misconduct. It was the Applicant’s personal decision not to seek police assistance but there was nothing to suggest that the Vietnamese police would have refused to assist her had she filed a report. The Board was satisfied that state protection of an adequate standard is available to the Applicant.

14.  Furthermore, according to the COI, internal relocation was permissible under Vietnamese law. The Applicant did not encounter any problem when she was in Mong Cai awaiting transit to Dongxing and her husband was also able to live peacefully in Vung Tau city as a fisherman. The Board did not accept that the loan shark was so powerful as to be able to locate her in other parts of Vietnam. It was therefore satisfied that the Applicant could relocate to Ho Chi Minh City or Vung Tau to avoid the risk of harm from the loan shark.

15.  For all these reasons, the Board dismissed her appeal against the Director’s decision in the Notice.

Legal principles applicable to judicial review

16.  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

17.  The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she only repeated her fear of being harmed or killed by the loan shark and his underlings because she is unable to repay the loan.

18.  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 Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to Vietnam. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Vietnam. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

19.  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 claim on the basis of the case as she asserted but found the risk of harm she would face on her return to Vietnam was low. On the basis of credible country of origin information, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real. It was on that basis that the Board found that she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.

20.  For the above reasons, her application for 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