TRAN HUU THANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 306/2024

[2024] HKCFI 2155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 306 of 2024

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 the Applicant being absent in open court;

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

2.  Extension of time to apply be refused; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 February 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) dated 3 November 2023. He named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) and the Director as the proposed respondents. In his supporting affirmation, he annexed a copy of the decision of the Board dated 3 November 2023 (the “Decision”) dismissing his appeal against the decision of the Director in his Notice of Decision dated 29 July 2021 (the “Notice”).

2.  The Applicant is a Vietnamese national, now aged 47. He entered Hong Kong illegally on 15 July 2020. He was arrested by the police on 9 September 2020, suspected of unlawfully landing and remaining in Hong Kong. On 29 September 2020, he made a claim for non-refoulement protection. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision. Against this background, it is obviously the Applicant’s intention to seek judicial review of the Decision of the Board dated 3 November 2023, which he mistook as a decision of the Director. Hence, leave is granted to amend his Form 86 by naming the Board as the proposed respondent and the Director as the interested party and the Board’s Decision as the decision in respect of which relief is sought.

3.  The leave application was filed three months and six days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was lodged 6 days out of time. Extension of time to apply is required.

4.  In AW and Director of Immigration and William Lam, the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court would be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

5.  The Applicant did not give any explanation for the delay in his Form 86 or supporting affirmation. As the delay is not substantial, instead of incurring time to explore his reasons for the delay, the Court considered it more expedient to proceed straight to assess merits of the leave application, which is usually the crucial and determining factor in an application for extension of time and which will also determine the leave application on its merits.

6.  In the course of processing his leave application, a letter inviting the Applicant to provide information and submission was sent by post to him care of Lai Chi Kok Reception Centre as provided by him in his Form 86 about one month ago. It was returned as he had been discharged. A similar letter was sent to him by post on 11 April 2024 to his address in Shanghai Street as discovered from the Immigration Department. The letter was not returned but he did not respond.

7.  The Applicant had requested a hearing. A hearing was scheduled and notice of hearing was sent to him by post to his address in Shanghai Street on 25 July 2024. It has not been returned through the post. He had never informed the court of any further change of address. There is nothing to suggest that he had not received the notice or had moved.  However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

The Applicant’s case

8.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the Applicant with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, the Applicant claims that he will be at risk of being harmed or killed by a moneylender and his followers upon his return to Vietnam as he will be unable to repay his outstanding loan.

9.  The Applicant has received nine years of formal education in Vietnam. He is married. His wife and two children are living in Vietnam. He had about 28 years working experience.

10.  In early 2018, he borrowed 1 billion Vietnamese Dong (“VND”) from a moneylender at a monthly interest was 8 million VND to start a wooden furniture shop in Ha Long City. He was required to repay the principal loan within ten months. He signed a written loan agreement with the moneylender but was not given a copy of the agreement. He does not know much about the background of the moneylender other than that he was a loan shark and gang leader with a lot of followers.

11.  His business went well at the beginning and he was able to pay monthly interest for the first three months. However, the business failed since May 2018 and he suffered a great loss. He closed down his shop in September 2018. He could not pay the monthly interest and principal loan to the moneylender.

12.  In June 2018, the moneylender instructed three followers to visit his shop to collect the debt. He was not at the shop at the time. They then visited his home to demand payment. He told them that he suffered a great loss in business and could not repay. They threatened to kill him if he failed to pay next month. Then they left.

13.  In August 2018, the three followers visited his home to collect payment. They used foul language at him and threatened to kill him if he failed to repay. He begged for further extension of time for two months. They left without injuring him.

14.  In October 2018, the three followers visited his home again to collect payment. When he said he was unable to repay, they beat him with bare hands for about five minutes and threatened to kill him if he failed to repay next month. The Applicant claimed that his back and abdomen were injured. He did not seek medical treatment or report the case to the police for fear of revenge from the moneylender.

15.  To avoid the moneylender, he moved to his grandparents’ home in November 2018 where he stayed for about three months. In February 2019, he moved to Mong Cai City where he stayed for one and half years. Then, he sneaked into Hong Kong on 15 July 2020.

16.  He does not believe the Vietnamese police could protect him, as they are corrupt and would not get involved in private monetary dispute. He does not believe the corruption hotline could help him because there were too many loan sharks in Vietnam and no one would help him. He also does not believe internal relocation viable because he lacks family connection in other parts of Vietnam and the moneylender could locate him anywhere in Vietnam through his powerful network.

The finding of the Board

17.  An oral hearing on 17 October 2023 was scheduled before the Board but the Applicant did not appear. A reminder was sent to the Applicant’s last known address as provided by him on 17 October 2023. He did not respond. Then the Board made the Decision on paper in his absence.

18.  The Board found that the moneylender is not a state actor and that as a matter of law  “avoidance of loan repayment is clearly not one of the RC reasons.”  That somewhat brief observation, properly understood in its context, means that fear of ill-treatment arising from debt collection activities is not a reason protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Refugees Convention”) in that it is not a fear founded on account of race, religion, nationality, membership of a particular social group or political opinion.

19.  The Board made extensive investigation into authoritative and credible country of origin information (“COI”) about loan sharking activities in Vietnam; police handling of such activities, police corruption and impunity; the Vietnamese government’s fight against corruption and recent development in combating corruption and illegal debt collection activities. There are COI supporting the Applicant’s belief about police impunity, corruption, and its ineffectiveness in dealing with loan sharking activities. On the other hand, there is overwhelming evidence in support of the government’s determination and success in fighting corruption, modernisation of the police, improvement in the police force and more importantly in dealing with loan sharking activities as evidenced by the arrests made in connection with illegal debt collection activities and the number of senior government officials arrested for their involvements in corruption. On balance, the Board was satisfied that the state was both willing and capable of offering effective protection to its citizens and there were no grounds based on well-founded fear for refusing it. In essence, the Board found on the Applicant’s own case that his fear of persecution was not well-founded, it was not one which is protected by the Refugees Convention and that in any event adequate state protection is available. Accordingly, it found the Applicant was not entitled to protection under Persecution Risk ground.

20.  As for BOR 2 Risk ground, the Board found there was no evidence that sentence of death will be imposed on the Applicant upon his refoulement to Vietnam and there was nothing to suggest that he would be deprived of his life by the Vietnamese government or that his life would be threatened by a risk targeting him personally.

21.  As for BOR 3 Risk ground, the Board did not accept that the Applicant had suffered injury of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest that he would be at risk of such harm, if refouled.

22.  As for Torture Risk ground, the Board found that there was no involvement by any public official or person acting in an official capacity in the alleged ill-treatment of the Applicant. It was not his case that there was any acquiescence by the state in inflicting ill-treatment on him or there was any consistent pattern of gross, flagrant or mass violation of human rights. The Board also found that the claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle him to protection.

23.  Applying the law applicable to non-refoulement protection to the above findings, the Board found the Applicant had failed to establish his entitlement to protection under any of the four applicable grounds under the USM. For all these reasons, the Board dismissed his appeal and affirmed the decision in the Director’s Notice.

Legal principles applicable to judicial review

24.  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. In an application for leave to apply for judicial review, the court will only 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

25.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he advanced the following four grounds:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case; and

(4)  the Director’s attitude was unfair.

Ground (1): unfairness and unreasonableness

26.  The Applicant made a general allegation that the Decision is not fair and reasonable as required by the Wednesbury test. Other than complaining that “[he] believes that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence to [her] non-refoulement claim as well as [her] appeal”, he gave no particulars as to why the Decision is unfair and unreasonable. He did not attend the hearing and forwent the opportunity to perfect his grounds with the Court’s assistance.

27.  As for his complaint that the Adjudicator failed to give him sufficient time and chance to arrange relevant evidence, his claim cannot stand when viewed against the progress of his appeal. Under the non-refoulement proceedings, a claim is first processed by the Director. The claimant prepares his NCF with the assistance and advice of the Duty Lawyer. He attends a screening interview in the presence of the Duty Lawyer. At the interview, he will be provided with relevant COI. The immigration officer who conducted the interview assesses his claim and issues the Notice of Decision on behalf of the Director. Usually, the Notice of Decision will be explained to him by the Duty Lawyer Service. Thereafter, he will not be provided legal assistance, except in special cases. If he is not satisfied with the decision in the Notice, he has fourteen days to appeal to the Board. If he appeals, the Immigration Department will prepare a hearing bundle containing all the documents mentioned above and any other documents presented by the Applicant. A copy of the hearing bundle will be served on the Applicant about two weeks before the hearing. The bundle is just a collection of all the material considered by the Director in making his decision in the Notice, namely, his NCF, record of interview, the COI and the Notice which the Applicant already had copies of.

28.  On the issue of timing, the Applicant raised the claim on 29 September 2020. He completed the NCF on 4 June 2021 and attended the screening interview on 2 July 2021.  He had eight and half months to prepare his NCF and a further month to prepare for the screening interview. He was served the Director’s Notice on 29 July 2021. Thereafter, he had 14 days to file his appeal to the Board. The appeal hearing was scheduled on 17 October 2023. In between the Applicant had twenty-six and half months to consider his appeal, critically consider the Director’s Notice of Decision, review the COI and review his evidence. Under such time line, it is difficult to see any merits in this ground of application.

29.  The Court noted that though the Decision is titled “Determination of Appeal/Petition With a Hearing”, the Decision indicates that the Applicant was absent. This is because also oral hearing had been scheduled for hearing the appeal, but the Applicant defaulted. He also did not respond to the Board’s request for explanation. Hence, the Board had to make the Decision in his absence. The Applicant only had himself to blame for the consequence. Nevertheless, nothing of significance emerged from the Applicant’s absence at the hearing as the Board held that his story is internally consistent as to the loan collection incidents and assessed his claim wholly on the basis of the case as he asserted. His contentions are accepted in full. There are no unresolved issues which require investigation and which might affected its determination. There was no deprivation of the Applicant’s chance of making worthwhile or effective representation. An oral hearing would not have enhanced his case and was considered unnecessary. A determination could be justly made without an oral hearing. There was no procedural unfairness in the making of the Decision.

Ground (2): failure to give proper weight to the presence of state acquiescence

30.  The Applicant complains about the Board’s failure to give proper weight to the presence of state acquiescence and alleges that he “was tortured at the behest of state law enforcement agencies and those in the high ups of political circles”. There is a total absence of evidence of influence by the state. There is no substance in this ground.

Ground (3): failure to give proper weight to COI supporting the Applicant’s case

31.  The Applicant complains that the Director has failed to take such argument into account or has failed to give enough weight to such argument before reaching the Decision. The Court assumes for his benefit that his complaint is also directed at the Board. He complains that despite having listed relevant COI favourable to the Applicant, the Board reached a finding to the contrary. The Board quoted COI supportive of the Applicant’s fears such as corruption and ineffectiveness of the Vietnamese police and COI supportive of availability of adequate state protection. The Board did analyse this issue of state protection. It analysed the COI supportive of the Applicant’s claim and COI evidencing the Vietnamese government’s effort in combating corruption and illegal debt collection activities. The analysis ran from Paragraph 48 to Paragraph 97, covering 14 pages. Paragraph 19 above is a concise summary of the Board’s findings. For reasons as explained in that paragraph, the Board found on balance that adequate state protection was available and there was no well-founded fear for the Applicant to refuse such protection. This is a finding of fact solely for the Board, which the court in a judicial review will not intervene, save for errors of law, procedural unfairness or irrationality in the decision. This Court cannot find any such vitiating elements in the Decision. The Applicant could have no basis for complaint in respect of COI relating to state protection.

Ground (4): the Director’s or the Board’s attitude was unfair.

32.  The Applicant complains that this was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. Assuming for his benefit that this complaint is also directed at the attitude of the Board, the Applicant gave no particulars of the unfair attitude complained of. Doing its best, this Court could only undertake a comprehensive and rigorous examination of the Decision with anxious scrutiny for errors of law, procedural unfairness and irrationality in the Decision.

An overall scrutiny

33.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review. As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality. 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 assessed the Applicant’s claim on the basis of the case as he asserted. The Applicant could have no valid complaint about such finding of fact.

34.  The Board found on the Applicant’s own evidence that the moneylender was not a state actor in inflicting the ill-treatment on the Applicant, that the injury he suffered did not attain the minimum level of severity as to qualify as torture. Then, on the basis of authoritative and credible COI, the Board found that adequate state protection is available and will be available to the Applicant on his return to the Vietnam if he requests for such assistance. The Board therefore rejected his belief that the police will not protect him from his feared harm as unfounded. All these are the Board’s finding of facts which the Court will not interfere, save for errors of law, procedural unfairness and irrationality.

35.  Then, applying the law applicable to non-refoulement protection to all these facts, the Board found the Applicant is not entitled as a matter of law to protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as any of these findings are finding of law, the Court could not detect any error of law. Insofar as these are finding of facts, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere. The Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. It is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

36.  As the leave application, even if amended, has no prospect of success, it would be futile to grant the Applicant extension of time to apply. For the above reasons, leave to amend the leave application is granted, but extension of time to apply for leave to apply for judicial review and the leave application as amended are 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