BUI THI NHI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2777/2018

[2021] HKCFI 1303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2777 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant is a Vietnamese national.  She had a history of illegal entry and stay in China and Hong Kong since 2012.  She last sneaked into Hong Kong in May 2015.  Then she surrendered to the Immigration Department on 26 May 2015 and lodged a non-refoulement claim asserting that she will be harmed or killed by her moneylender if returned to Vietnam.

2.  In due course, her non-refoulement claim was assessed on all four applicable grounds then available 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 23 November 2016 (the “Notice”), the Director of Immigration (the “Director”) rejected her claims.  She appealed to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice.  On 29 November 2018, the Board dismissed her appeal (the “Decision”).  On 6 December 2018, she applied for leave to apply for judicial review of the Decision of the Board.

3.  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 Applicant’s case

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

5.  The Applicant is a widow.  She has a daughter and a son born in 2002 and 2007 respectively.  Her husband died in 2007.  She started raising hens and pigs in 2009.  She also opened a shop selling clothes and cosmetics.  In 2011, she borrowed 500 million Vietnamese Dong from a moneylender, Hoang Trung Hieu (“Hoang”), at a monthly interest of 5 million Vietnamese Dong per month for the purpose of expanding her business.  The loan was to be repaid in three years.  She signed a written loan agreement but was not given a copy.  Initially, her business did well and she was able to pay the interest.  However, since March 2012, the business dropped and she was unable to pay interest. 

6.  At 4 pm on 25 April 2012, Hoang went to the Applicant’s home with four followers to demand payment (the “first incident”).  The Applicant begged for time.  Hoang said she only had to repay the principal but that she would die if she did not pay.  He and his men assaulted her.  Hoang took out five knives from his motorcycle.  The Applicant ran into her room and locked the door.  Then Hoang threw the knives at her through the window.  Before he left, Hoang said he would come once every five days to chase for repayment.

7.  At about 5 pm on 30 April 2012, Hoang went to the Applicant’s shop with four followers to demand payment (the “second incident”).  The Applicant said she had no money.  Then Hoang said he would send his men to sleep in her home every day if she did not repay.  As there were customers in the shop, Hoang left without causing any violence.

8.  On 5 May 2012, Hoang and four men visited the Applicant’s home (the “third incident”).  The men were carrying knives.  Hoang said he would chop her if she did not pay.  The Applicant warded him off as Hoang with a metal tray.  Then Hoang and his men left.

9.  The Applicant took shelter in her friend’s home for a month.  Then she sneaked into Guangdong and stayed for a year.  She returned to Vietnam in June 2013.  In December 2013, she applied for a visa and came to Hong Kong.  She was denied entry and repatriated back to Vietnam.  She stayed in Vietnam for two days and then sneaked into Dongxing, China where she stayed for one and a half years until May 2015 when she sneaked into Hong Kong.

10.  At the appeal hearing, the Applicant said that prior to borrowing from Hoang in 2011 she had borrowed another 500 million Vietnamese Dong from another moneylender when she first started her business.  She was required to pay interest of 1.5 million Vietnamese Dong per month, but she did not pay.

11.  In respect of the loan from Hoang, the Applicant added that her motorcycle and house were used as security for the loan from Hoang; and that she had an original and photo copy of the loan agreement though she had not brought them with her to Hong Kong. 

12.  She gave a more serious account of what happened during the first incident and changed her evidence relating to the other two incidents.  She said that Hoang’s men tried to stab her with knives but she escaped.  Then they threw two knives at her.  They threatened to hold up her two children; set fire to her shop; come to her shop to chase for repayment in a way that nobody would dare to attend her shop; will find somebody to kill her and to hold up her children at school.  She was admitted in a hospital for a month and lost 80% of her memory. 

13.  After she was discharged from hospital, Hoang and his four men visited her in the shop to demand payment. They threatened to kill her.  Then they stayed outside the shop.  When they saw any customer getting any money from the customers, they came into the shop to collect the money.  She could not remember whether they collected any money.

14.  Thereafter, Hoang chased for repayment for nearly ten times.  She could not remember the details.

15.  She said that her children are now staying in her friend’s home.  Her friend told her that Hoang was still looking for her; Hoang had taken possession of her house; her friend was told by her neighbours that somebody went to her house every day and even slept outside her house.  Her friend confirmed that her children were not harmed.

The finding of the Board

16.  The Board reminded itself that the Applicant bore the burden of proving her fear and risk, but the standard was a relatively low one.  It reminded itself that it was not always necessary to be absolutely persuaded that the Applicant’s assertions were certainly or even probably true.  However, the Board was not satisfied that the Applicant was a truthful witness because of the numerous inexplicable inconsistencies between her evidence at the oral hearing before the Board and her evidence in her non-refoulement claim form and her screening interview. The Board found the Applicant was making up story when she gave evidence in the hearing.  The Board was not satisfied that the Applicant had proved the existence of the loan which is the centrepiece of her case of fear and risk. 

17.  The Board also considered Country of Origin Information (“COI”) based on credible sources, including the US Department of State: Country Reports on Human Right Practices of Vietnam 2017 published by the Bureau of Democracy, Human Rights and Labor, US Department of State; the UK Home Office: Country of Origin Information Report – Vietnam published by the United Kingdom Border Agency Home Office and some news reports.  From these COI, the Board was satisfied that despite the general situation of corruption in Vietnam, the government was committed to fighting corruption, improving police professionalism and capabilities, especially investigative capabilities, combating illegal money lending activities and improving protection to its citizens.  The Board was satisfied that state protection of a reasonable standard is available to Vietnamese citizens to prevent the risks. 

18.  Essentially because of the Applicant’s failure in proving the loan, her fear and risks and because of availability of state protection, the Board held that the Applicant has failed to substantiate her claims under all the four applicable grounds. 

Grounds of application

19.  In her affirmation filed in support of her application, the Applicant only exhibited the Decision of the Board.  She did not put forward any specific grounds in support of her application for leave.  Her case and the finding of the Board have been summarized above.

20.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise 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]. .  The Applicant has not advanced any grounds in respect of these matters.  Having rigorous 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; correctly applied 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 Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

21.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, 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

[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)