PHUNG THI TUOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1028/2019

[2022] HKCFI 2060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1028 of 2019

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 (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 April 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 February 2018 (the “Notice”).

2.  The Applicant is a Vietnamese national, now aged 43. She entered Hong Kong in January 2015 illegally and was arrested by the police on 16 March 2016 for taking up unauthorised employment. On 19 May 2016, 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, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 5 February 2018, the Director rejected her claims under all four applicable grounds.

4.  She appealed to the Board against the decision of the Director in the Notice. Her appeal was dismissed by the Board’s Decision dated 4 April 2019. On 16 April 2019, she applied for leave to apply for judicial review of that Decision. The Applicant 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 will be harmed by her Moneylender upon her return.

6.  The Applicant was born in Bac Giang Province, Vietnam. She received 5 years of education. She is married and has 3 children. She had worked as a domestic helper in Malaysia for 3 years. She then returned to her hometown and grew rice crops with her husband to make a living. To earn more money, she took out a loan of VND 700 million to start a livestock business in February or March 2014 from Fu (the “Moneylender”) who had a triad background. The daily interest was VND 49 million, ie 7%.

7.  She was able to make repayment until October 2014 when an outbreak of epidemic disease killed all her livestock. Ten days after her default in payment, the Moneylender and about ten gangsters came to her house, damaged the furniture and took away items of value. They threatened to make her suffer unless she paid back the loan.

8.  The Moneylender came again three days later and tied her to a tree. He asked her to work as a prostitute to make money but she refused. She was attacked with leather belts and she passed out from the abuse. The Moneylender told her family that she would be killed if she failed to make repayment.

9.  The Moneylender and gangsters came again on the next day. They kicked and punched her for five minutes. She sustained injuries to her head, chest and chin. She was told to traffic in drugs after her recovery or she would be killed.

10.  The Applicant knew that drug trafficking is a serious offence punishable by death. She did not report the case to the police because she believed the police would not intervene unless she offered them bribes. She did not consider it possible to relocate within Vietnam as she did not have any land to farm anywhere else and that the Moneylender had resources to locate her and harm her. She stayed with her relative in southern Vietnam for two months. Then she fled to Hong Kong in early January 2015.

11.  She obtained forged identity documents from some Vietnamese to enable her to take up employment. Subsequently, she was arrested by the police. Currently, her husband had disappeared and her children were being taken care of by her parents.

The finding of the Board

12.  The centrepiece of the Applicant’s case was her fear of harm and death from the Moneylender. However, the entirety of her case was built on her own verbal assertions which was not supported by any other evidence. The Board found her case inherently improbable. According to her, she had to pay daily interest of 7% which was incredibly high and unaffordable. Her livestock could not have grown that fast for her to sell so as to pay such an incredibly high interest. Also, she did not make a non-refoulement claim until after her arrest for taking up unauthorized employment. Her explanation that she did not know about availability of non-refoulement protection in Hong Kong was contradicted by her own evidence that she had heard about such protection before she came to Hong Kong. The Board found the Applicant incredible and did not accept her account. It rejected her allegation about the loan and the assault by her Moneylender.  

13.  The Board noted from credible Country of Origin Information that while there were corruption problems in the Vietnamese government, the government had been taking effective steps to deal with corruption and illegal debt collection activities. It was satisfied that state protection would be available to the Applicant upon her return to Vietnam. The Board did not find it necessary to consider internal relocation as the Applicant did not have a well-founded fear of persecution.

14.  Having failed to prove the factual basis on which her claim for protection was based, the Board found the Applicant had failed to discharge the burden of proving her entitlement to protection on any of the applicable grounds under the USM. It therefore upheld the decision of the Director in the Notice and dismissed her 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 state her grounds for judicial review in the Form 86 or in her supporting affirmation. She had been invited by the Court via its letter dated 4 March 2022 to advise the Court of her first language and to file submissions. She did not respond. The letter was sent to her at her address as stated in his supporting affirmation dated 16 April 2019. It has not been returned through the post. There was nothing to suggest that the Applicant had moved or has not received the letter.

17.  The Applicant did not advance any grounds for judicial review in the Form 86. She only repeated her fear of harm and death in her supporting affirmation. 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. The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country. 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.

Conclusion

18.  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 found the Applicant untruthful and rejected her evidence and her account. 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.

19.  For the above reasons, leave to apply for judicial review was 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