DONG XUAN CHUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1613/2020

[2024] HKCFI 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1613 of 2020

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.  This is the Applicant’s application by Form 86 filed on 5 August 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 13 July 2020 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 November 2019 (the “Notice”). 

2.  The Applicant is a Vietnamese national, now aged 35.  He entered Hong Kong on 3 September 2019 illegally and surrendered to the authorities on 9 September 2019.  On 23 September 2019, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that, if refouled, he will be harmed by a moneylender (the “Moneylender”) because of his inability to repay a loan owed to the Moneylender.

4.  The Applicant was born and raised in Quyet Hung, Minh Duc, Thuy Nguyen, Hai Phong, Vietnam.  He attained Class 7 at a secondary school in 2002 and has nine years of work experience as a freelance hairdresser and cook.

5.  He worked as a cook in Hai Phong in 2015 and opened his own seafood restaurant in May 2018.  On 10 May 2018, he borrowed 800 million Vietnamese Dong (“VND”) from the Moneylender monthly interest rate of 24 million VND for the purpose of starting his own business.  He had to repay the principal within a year.  The Moneylender operated a pawn shop and was a widely known moneylender in the local area.  The Moneylender had triad connections and was accompanied by gangsters wherever he went.

6.  His restaurant suffered loss.  He took an additional loan of 300 million VND at a monthly interest rate of 0.7% from a bank using his mother’s house as collateral.  The principal had to be repaid in August 2020.  Unfortunately, the restaurant continued suffering loss.  The Applicant was only able to pay interest to the Moneylender until March 2019, after which he closed down the business.

7.  On 10 April 2019, two of the Moneylender’s men arrived at the Applicant’s home and demanded payment of interest.  The Applicant was not at home.  Then the men told his mother that if he failed to pay within ten days he would be in trouble.  On 20 April 2019, the Moneylender and four men visited the Applicant at his home.  They assaulted him until he fell unconsciousness.  He was taken to hospital.  He sustained a head injury that required stitches and multiple bruises on his body.  

8.  The Moneylender’s men attempted to see the Applicant at the hospital but were denied entry.  Then they told the Applicant’s wife that he had to pay both the principal and the interest within three days or they would kill him.

9.  On 22 April 2019, the Applicant fled with his wife to Mong Cai.  Then they sneaked into Dong Xing on 10 May 2019 and worked in a toy factory.  Having earned enough money for his trip, the Applicant sneaked into Hong Kong.  While he was away, he learned from his family that the Moneylender and his men frequently visited his home and left death messages to him.

10.  He does not believe state protection would be available as the police would side with the rich, such as the Moneylender.  He claims that internal relocation would not be viable because the Moneylender could locate him with the help of his associates.  He also lacked the money to start a new life in other parts of Vietnam. 

The finding of the Board

11.  The Board assessed his claim on the basis of the case as he asserted.  It refused his claim under the Torture Risk ground primarily because it could find no evidence of state involvement or that the Moneylender was associated with the Vietnamese government.

12.  It rejected his claim under Persecution Risk ground because his dispute with the Moneylender was purely private in nature and the risk of harm was not on account of race, religion, nationality, membership of a particular social group or political opinion. Hence, his claim fell outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  

13.  As for BOR 3 risk, the Board repeated its finding on the absence of serious harm to him upon his return.  In relation to BOR 2 risk, it held that there was nothing to suggest that he was of adverse interest to the Vietnamese government or that he would face any punishment of death upon his return.

14.  On the basis of credible Country of Origin Information, the Board found that state protection of an adequate standard is available to prevent or negate the risk and harm from the Moneylender.  It also found that the Applicant could relocate himself elsewhere in Vietnam, such as Ho Chi Minh City or Hanoi to avoid the possible risk and that it would not be unduly harsh to expect him to do so. 

The legal principles applicable to judicial review

15.  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, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

16.  The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he reiterated that he disagreed with the Decision and that he could not return to Vietnam as his life would be in danger there.

Discussion

17.  In the absence of specific grounds of application, the Court 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.  However, after having been explained the legal principle in the above section, the Applicant confirmed that he had no complaints about error of law, procedural unfairness and irrationality in the Decision.  He confirmed it would be safe to return to Vietnam as his problem had been solved.  As there is no factual basis to seek a judicial review, his leave application is therefore 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

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