NGUYEN VAN THANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 137/2023

[2023] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 137 of 2023

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 for leave to apply for judicial review of a decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 3 January 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) dated 27 September 2021. The Applicant has not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, 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).

2.  The Applicant is a Vietnamese national, now aged 26. He was arrested on 7 September 2020 for illegally remaining in Hong Kong. He claimed he sneaked into Hong Kong via Mainland China on 24 June 2020. He raised his non-refoulement claim on 3 October 2020.

3.  In due course, his 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]. 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

4.  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 from the Duty Lawyer Service. In gist, he claims he will be killed by his creditor surnamed Hung and his underlings because he was unable to pay his debt.

5.  The Applicant was born in Quang Ninh Province, Vietnam. He received 12 years of formal education and has about 4 years of working experience in various vocations. In early 2018, he opened a fish stall but the business was unsuccessful. In August 2018, he ran out of funds and borrowed 500 million Vietnamese Dong (“VND”) from Hung, a loan shark with a triad background and was well-known in the Applicant’s neighbourhood. He signed a borrowing note agreeing to pay Hung 20 million VND as interest each month until Hung was satisfied and to repay the loan in 2 years and 2 months, ie by October 2020. He was not given a copy of the borrowing note.

6.  The Applicant was able to make monthly interest payments to Hung from August 2018 to February 2020, notwithstanding his business was not doing well. In or around March 2020, his business was closed down. As he no longer had an income, he sought a grace period from Hung to repay and was granted an extension of two months to pay.

7.  In May 2020, Hung and two to three of his underlings came to the Applicant’s home to demand payment. The Applicant said he was unable to pay. Hung verbally threatened to beat the Applicant if he could not pay but there was no physical altercation on this occasion. Out of fear, the Applicant fled to his friend’s home in Cao Son. Whilst in hiding, Hung and his underlings came to the Applicant’s home again seeking his whereabouts but was unsuccessful. He threatened to kill the Applicant upon his return. The Applicant then fled to another friend’s home in Ho Chi Minh City in June 2020. During this period, his mother informed him that Hung continued to visit his home enquiring for his whereabouts.

8.  The Applicant thought he could no longer hide in Vietnam and returned home in June 2020 in preparation for his departure from Vietnam. One day, Hung and his men barged into his home with iron rods and beat him for around two minutes until he fell unconscious. He was hospitalised for 10 days but he was unable to obtain a medical report.

9.  The Applicant said that he did not report the incidents to the police because the Vietnamese police is corrupt and he had no money to bribe them; the police will not intervene about loan disputes as such disputes are regarded as private matters; and he is also afraid that the situation would be exacerbated if Hung learned he had made a report.

10.  The Applicant last communicated with his family on 15 June 2021. His mother informed him that Hung continued to visit their home on several occasions. Therefore, the Applicant is still in fear that he would be killed if he is refouled to Vietnam.

The finding of the Board

11.  The Applicant testified before the Board. His evidence is inconsistent with the evidence he gave in his NCF in many respects and at odds with publicly available information. In his NCF, he said that the loan was taken out in August 2018. But he told the Board that he was forced to borrow because his business was affected by the onset of COVID-19 pandemic in July or August 2019. However, the available information indicated that the first COVID-19 pandemic wave in Vietnam commenced in January 2020. His explanation that he could not remember clearly was rejected by the Board.

12.  He gave inconsistent details about the terms of the loan, in particular when it was to be repaid. He also told the Board that he was given a copy of the borrowing note, but previously, he said in his NCF that he had not been provided with such copy.

13.  His evidence about the ill-treatment was inconsistent. In his NCF, he said he was not beaten on the first occasion when Hung visited his home, but he told the Board that he was beaten for an hour. He also told the Board about a second beating which is inconsistent with the only beating he described in his NCF. He told the Board he was beaten with bare hands for 30 minutes and suffered light wounds. In his NCF, he said he was beaten with iron rods for two minutes so that he was knocked unconscious and had to be hospitalised for ten days.

14.  The Board found a vast gulf of difference between the Applicant’s evidence before the Board and his NCF which were not satisfactorily addressed by the Applicant and which led the Board to conclude that the centrepiece of his claim is largely concocted and false. Hence, the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection and dismissed his appeal.

Legal principles applicable to judicial review

15.  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

16.  The Applicant did not advance any grounds for judicial review in his Form 86. In his supporting affirmation, he said he disagreed with the Decision and he could not return to Vietnam as his life will be in danger there. In effect, he is challenging the Board’s finding of fact that he had failed to prove the factual basis to support his claim, which for reasons as explained above is not permissible.

Conclusion

17.  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. 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 found the Applicant’s evidence incredible and his case concocted. He had therefore failed to establish the factual basis in support of his claim for protection. As he bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove his 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. Accordingly, the 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

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