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

HCAL 1195/2024

[2024] HKCFI 2714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1195 of 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

1.  Extension of time to apply for leave for Judicial Review be refused; and

2.  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 24 July 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 19 March 2024 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 August 2023 (the “Notice”) refusing his application for non-refoulement protection.

2.  The leave application was filed slightly more than 4 months 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 made 36 days out of time. Extension of time to file the leave application is required.

3.  In AW and Director of Immigration and William Lam[1], 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 could 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.

4.  The Applicant had not advanced any explanation for the delay. He was in immigration detention at the time he filed his leave application. Having regard to the fact that he was in detention and that the delay was not very substantial, instead of incurring time to explore the reasons for the delay with the Applicant at the oral hearing, 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.

Background

5.  The Applicant is a Vietnamese national, now aged 37. He was arrested by the police for an immigration offence on 9 April 2023 and referred to the Immigration Department on 10 April 2023. On the following day, he made a non-refoulement clam. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. By the Notice, the Director rejected his claim. His appeal against the decision in the Notice was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by the Applicant with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that if he returned to Vietnam, he would be harmed or killed by a moneylender for being unable to repay the loan owed to that moneylender.

7.  The Applicant was born in Thon Tan Hai, Quynh Lap, Thi Xa Hoang Mei, Nghe An, Vietnam. He is married. His parents, his two siblings, his wife and their three sons are living in Vietnam. He received nine years’ of formal education. He had 19 years’ experience working in the fishery industry and in fish farming.

8.  In 2018, the Applicant commenced his fish farming business in Nghe An. In 2020, he borrowed 20 billion Vietnamese Dong (“VND”) from a moneylender at a monthly interest of 16 million VND for the purpose of expanding his business. He knew the moneylender was a loan shark with triad background.

9.  He used the money borrowed for expanding his business. He managed to pay the monthly interest for the first three months after drawing down the loan. However, since the fourth month, he was unable to pay interest because his fish farm was contaminated by the pollutant from a nearby factory and his fish died. His business went downhill. He closed down his fish farm in 2021.

10.  Then the moneylender’s men came to his home to collect interest payment. On the first and second occasions, they allowed him extra time to pay and threatened to beat him up if he could not repay. On the third occasion, they hit his forehead and his back with wooden sticks. He suffered bruises all over his body and bled on his head. He received treatment on his forehead in a hospital.

11.  Thereafter the moneylender called him numerous times, but he did not answer the calls. Then, he relocated to Hanoi where he worked and lived alone for about one to two years. While he was away, the moneylender’s men regularly went to his home to enquire about him. They never harmed his family members.

12.  For the safety of the other members of his family, his father gave the Applicant 1.5 billion VND for his trip to Hong Kong. In April 2023, he entered Nanning in Mainland China, traveled to Shenzhen, and then sneaked into Hong Kong.

13.  While he was away, the moneylender’s men visited his home every month, and threatened to kill the Applicant if they saw him in Vietnam. They never harmed the Applicant’s family members.

14.  The Applicant does not believe the internal relocation would be viable, as the moneylender could locate him in Vietnam through his powerful network. He does not believe the Vietnamese authorities and police would protect him, as they are corrupt.

The finding of the Board

15.  The Board accepted the Applicant’s evidence and assessed his claim on the basis of the case as he asserted. The Applicant was not harmed on the first two occasions of the moneylender’s visit. He was harmed only on the third occasion. The Board considered the injury he suffered did not attain the minimum level of severity. Also, the moneylender and his men never hurt or harm any member of the Applicant’s family during all their visits. From these incidents, the Board drew the inference that the moneylender had no intention to carry out the threats or to seriously harm the Applicant. It found his intention was to give pressurise him to repay his debt only. As he was never pursued by the moneylender after he fled from his home, the Board found that the moneylender lacked the power and resources to locate him outside his home area. The Applicant’s risk of harm is localised to his home area.

16.  In respect of BOR 3 Risk ground, the Board found that the Applicant suffered bruises and injuries requiring only five stitches which fell short of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest he would be at such risk of such harm if refouled.

17.  The Board found that the Applicant’s dispute with the moneylender was a personal dispute and hence his fear of ill-treatment was not on account of any one of the five reasons protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie race, religion, nationality, membership of a particular social group or political opinion. As the Applicant’s family were all along staying in Vietnam and were never harmed, the Board considered the Applicant’s risk of harm arising from Persecution Risk is very low.

18.  In respect of Torture Risk ground, the Board found the ill-treatment suffered by the Applicant during the three occasions did not meet the requirement of “torture” under section 37U(1) of the Immigration Ordinance. It also found that the moneylender and his men who inflicted the ill-treatment on the Applicant were not public officials or other persons acting in an official capacity nor was the ill-treatment inflicted by, or at the instigation of, or with the consent or acquiescence of such a person.

19.  As for BOR 2 Risk ground, the Board found there was nothing to suggest that the Applicant would be deprived of his life by the Vietnamese government.

20.  The Board also found on the basis of authoritative and credible country of origin information (“COI”) that as an able-bodied person, the Applicant could safely relocate to Ho Chi Minh City or Hanoi to avoid the perceived risks from the moneylender and his men, which were localised within his home area.

21.  Applying the law applicable to non-refoulement protection to the above finding of fact, the Board found the Applicant had failed to prove he would be at risk of any of the proscribed risks of harm, if refouled back to Vietnam. It therefore dismissed his appeal and affirmed the decision in the Director’s Notice.

Legal principles applicable to judicial review

22.  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[6].

Grounds for judicial review

23.  The Applicant advanced the following six grounds of judicial review in the Form 86:

(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;

(4)  the Board was procedurally improper and unfair in assessing the Applicant’s case;

(5)  the Director’s or the Board’s attitude was unfair; and

(6)  the Board’s Decision was irrational.

In his supporting affirmation, he reiterated that he would face the risk of being killed or tortured if he is returned to Vietnam.

24.  Some of these grounds are directed at the Director’s failures. For the Applicant’s benefit, it is assumed that they are also directed at the Board. The Applicant said his friend prepared the grounds based on what he told him. However, he was unable to provide particulars of the grounds when asked. He admitted he did not know the contents of the grounds. The Court bears these grounds in mind in its overall scrutiny of the Board’s Decision.

Ground (1): unfairness and unreasonableness

25.  This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting article 28 of the Basic Law and article 2 of the Bill of Rights and mentioning the right to life and the extra-judicial killing which he would face if returned to Vietnam. These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided he meets the criteria in any of the four applicable grounds under the USM. The question is whether the Applicant meets those criteria. The Board was of the opinion that he did not. That is a finding of fact exclusively within the province of the Board. The Applicant disagreed with the finding and complained that the Decision was unfair and unreasonable. But he did not give any particulars as to why the Decision was unreasonable and unfair. The Board set out the legal principles relating to the four applicable grounds under the USM, the burden of proof, the Applicant’s evidence and gave full reasons for its finding. The Board assessed the Applicant’s claim on the basis of the case as he alleged. He could have no reasons to complain on the Board’s finding of these primary facts. However, the Board found even on the case as he asserted, he failed to discharge the burden of proving that his fears and risks meet the criteria under any of the four applicable grounds. These are mixed finding of fact and of the law. Having examined the Decision with anxious scrutiny, the Court is satisfied that the Board’s finding could not be criticized as unfair or unreasonable.

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

26.  Except for making a general accusation of corruption in Vietnam, the Applicant gave no evidence about state acquiescence in inflicting harm on the Applicant by the moneylender. He also gave no particulars of such state acquiescence. He had not adduced any evidence of state acquiescence before the immigration officer or the Board. At the hearing, after the meaning of state acquiescence was explained to him, he claimed he had actually made a report to the local police station. He waited for a long time, but heard nothing about follow up action having been taken by the police. Hence, he did not find it necessary to tell the immigration officer or the Board. The evidence was never presented before the Board. The Board took into account all the evidence before it and specifically addressed its mind to the issue of knowledge, consent and acquiescence in harming the Applicant by people in an official capacity. The Board could not be said to have failed to give proper weight to the presence of state acquiescence.

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

27.  The Applicant had not referred to any COI in support of his case. The Board had referred the Applicant to COI about Vietnamese government’s action against illegal debt collection activities in considering availability of state protection and complaint against the police corruption and ineffectiveness. Save for the COI relating to internal relocation, the Board had not relied on any other COI in its Decision. At the hearing, the Applicant admitted that he was unable to refer to any COI which he said would support his case and which the Board had failed to take into account. He said his friend prepared the grounds of review for him and he had no idea of its contents.

Ground (4): procedurally improper and unfair

28.  The Applicant complained that the Board acted unfairly and improperly when assessing whether to accept or not to accept the explanations provided by him and unreasonably required him to response to questions that he was not in a position to offer any response. The Board accepted the Applicant’s case and assessed his claim on the basis of the case as he asserted. It is difficult to see how in the circumstances could such a complaint be raised.

Ground (5): the Director’s or the Board’s attitude was unfair

29.  The Applicant complained that the Board failed to take such argument into account or give enough weight to such argument before reaching its Decision, but did not identify the argument which he referred to. He complained that the Board failed to attain the high standard of fairness required by the Wednesbury test, but was unable to identify the failures he relied on.

Ground (6): the Board’s Decision was irrational

30.  The Applicant complained that it was irrational for the Board to dismiss his appeal. He was unable to advance any argument in support of his complaint.

Overall scrutiny

31.  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.

32.  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 his case as asserted by him. It was on that basis that the Board found the Applicant’s feared ill-treatment is unlikely to materialise. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they 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. Insofar as they are finding of the law and application of the law to the facts found, the Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

33.  As the leave application has no realistic prospect of success, it would be futile to grant the Applicant extension of time to file the leave application. Hence, extension of time to file the leave application and the application for leave to apply for judicial review 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