NGUYEN KHAC TRONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1601/2019

[2024] HKCFI 456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1601 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 the Applicant being absent;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 12 June 2019 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 27 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 July 2018 (the “Notice”). 

2.  The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to him by post on 7 December 2023 to his address in Apliu Street as stated in his Form 86 and again on 15 December 2023 to his last known address at Kwelin Street obtained from the Immigration Department on 14 December 2023.  Out of abundance of caution, the court clerk actually reached him on telephone and reminded him of the date of oral hearing.  Despite all these efforts to bring the oral hearing to his notice, the Applicant did not appear.  Having considered the nature of the application and issues raised, the Decision, the papers, the relevant legal principles and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Vietnamese national.   He entered Hong Kong illegally on 11 June 2016 and surrendered to the authorities on 13 June 2016.  On 8 May 2017, he raised a non-refoulement claim.

4.  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

5.  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 he would be harmed by a moneylender (the “Moneylender”) upon his return because of his inability to repay a loan owed to the Moneylender.

6.  The Applicant, now aged 33, was born in Du Le, Kien Thuy, Hai Phong, Vietnam.  He received nine years of education and has worked as a solder in multiple mechanical companies.  He owned a business trading in iron and steel between 2012 and 2015.

7.  Towards the end of 2013, he borrowed 800 million Vietnamese Dong (“VND”) at a monthly interest of 24 million VND from the Moneylender to fund his business.  The Moneylender had a pawn shop.  The Applicant suspected he had triad connections.  Due to the failure of his business in 2015 and his inability to repay the loan, the Moneylender began sending his men to collect the debt from the Applicant. 

8.  In the first two incidents in March 2015, those men assaulted the Applicant with fists and kicks.  In the interview he claimed that he was in fact beaten with wooden sticks in those incidents.  He did not sustain serious injuries in either of those incidents.

9.  In April 2015, the Applicant hid in various places of his friends within Hai Phong to evade further encounters with the Moneylender.  In late May 2015, he returned to his parents’ home. He was assaulted by the Moneylender and his men with wooden rods. He suffered a broken rib and was hospitalized for half a month.  It took him another month to recover.

10.  After that, the Applicant moved to Ho Chi Minh City and later to his friend’s home in Hanoi from August to September 2015 to avoid the Moneylender, who frequently visited his parents’ home to search for him. 

11.  Between October 2015 and March 2016, the Applicant continued to evade the Moneylender by moving between various cities, including Ho Chi Minh City, Hanoi, Hai Phong City and Mong Cai.   In January 2016, during a visit to his parents, the Applicant was caught by the Moneylender’s men, who cut the tendon of his left foot and threw him into a river.  He received stitches.  It took him a month to recover.  In March 2016, he relocated to Mong Cai where he stayed for a month.

12.  On 14 April 2016, the Applicant entered Mainland China via Dong Xhing, China and then sneaked into Hong Kong by boat. 

13.  He maintains weekly contacts with his father on telephone.  He does not dare return to Vietnam due to the risk of harm from the Moneylender.  He never sought assistance from Vietnamese authorities because he thought they would not get involved in triad matters.  He also feared that reporting incidents would provoke greater retaliation from the Moneylender.  The Applicant believed that relocation within Vietnam would be futile, as the Moneylender could locate him throughout the country.

The finding of the Board

14.  The Board determined his appeal without an oral hearing, pursuant to Section 12 of Schedule 1A to the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. It assessed his claim on the basis of the case as asserted by him.

15.  On BOR 3 Risk, the Board noted that the Moneylender had the opportunity to inflict serious injuries on the Applicant or even to kill him, but chose not to do so.  This showed that the Moneylender only wanted to pressure him into making payment and did not intend to seriously harm or kill him.  His risk of harm from the Moneylender is not substantial.  Further, it found on the basis of authoritative and credible country of origin information (“COI”) that the Vietnamese government had tried to put in place measures for preventing police abuse and to cure malpractice in its police force.  It found the Vietnamese police was generally effective in maintaining public order and adequate state protection was available.  It dismissed the Applicant’s allegation that the Vietnamese police was ineffective and unwilling to help as unfounded.

16.  In respect of Torture Risk, it found the ill-treatment suffered by the Applicant arose out of a personal and monetary dispute between him and the Moneylender which did not fall within the Convention categories and was not on account of race, religion, nationality, membership of a particular social group or political opinion. Hence, his claim under this ground failed. 

17.  In relation to Persecution Risk, the Board found the Applicant’s fear of ill-treatment did not fall within the definition of persecution and that his source of fear arose out of his personal and private affairs with the Moneylender.  It was not on account of race, religion, nationality, membership of a particular social group or political opinion.  Hence, his claim under this ground failed. 

18.  As for BOR 2 Risk, the Board did not accept that the Applicant faced any sentence of death and could not make out a claim for protection under BOR 2 Risk ground.

19.  The Applicant was able to avoid the Moneylender by staying in Ho Chi Minh City or Hai Phong City before he came to Hong Kong.  The Board therefore considered it reasonable for the Applicant to relocate himself to those cities to avoid any possible risk of harm from the Moneylender and that it would not be unduly harsh to expect him to do so. 

20.  For all these reasons, the Board dismissed the Applicant’s appeal against the Director’s Notice.

The legal principles applicable to judicial review

21.  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]. 

Grounds for judicial review

22.  The Applicant did not put forward any grounds of application in his Form 86 or 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 irrationality in the Decision.   

Discussion

23.  In its rigorous examination of the Board’s Decision, the Court found the Board erred in its application of the law to its finding of fact in assessing the Applicant’s risk under the Torture Risk ground.  When quoting the legal principles applicable to that ground, it correctly referred to the definition of ‘torture’ under section 37U(1) of the Immigration Ordinance.  It quoted the correct legal authority.  It correctly understood that a Torture Risk claimant has to show a foreseeable, real, personal and present risk that he will be subject to ‘torture’ of a minimum level of severity as defined in section 37U(1); and that involvement in the torture by public official or person acting in an official capacity is required.

24.  However, when assessing the Applicant’s risk under the Torture Risk ground, it did not direct its mind to these criteria. Instead, it referred to ‘Convention Categories’ and ‘Convention reasons’ namely, ill-treatment on account of race, religion, nationality, membership of a particular social group or political opinion.  Obviously, by ‘Convention Categories’, the Board was referring to the Convention reasons under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  The Board seemingly applied the law relating to Persecution Risk ground to the Applicant’s claim under Torture Risk ground.  That is a serious misdirection in law.  On the evidence, it was open to the Board to find that the ill-treatment did not fall within the definition of ‘torture’ under section 37U(1) in that it was not inflicted for the purposes and reasons stated in that subsection or at the instigation of a public official or other person acting in an official capacity, etc.  But it did not make such a finding.  Nor can this Court can make such a finding on behalf of the Board. 

25.  The only saving grace is its finding that state protection and internal relocation are viable options to prevent, minimise or avoid the risk.  This finding is a finding of fact which the court in a judicial review may not intervene, save for errors of law, procedural unfairness or irrationality.  This finding is based on authoritative and credible COI.  There is nothing to challenge the reliability of such COI. The weight to be attached to such COI is also a finding of fact solely within the realm of the Board, which this Court may not interfere.  Thus, even assuming by the Board’s error in law, the Applicant was able to prove his risks under the Torture Risk ground, the severity or gravity of such risks is very much reduced by the availability of state protection and internal relocation.  Such risks are low.  This is in fact the finding of the Board in paragraphs 27 to 32 of the Decision.  Thus, the Applicant was unable to show even on a very low standard that he will be subject to any real and foreseeable risks of harm, if returned to Vietnam.  This error of law is not fatal.

26.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 and quoted relevant legal precedents in support of its Decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim. 

27.  The Applicant’s claim is founded on his fear of harm by the Moneylender.  The Board assessed his claim on the basis of the case as he asserted.  It found that even on those facts he is not entitled to protection as a matter of law.  This is a mixed finding of fact and of the law.  Insofar as it is a finding of primary facts is concerned, the Applicant could have no complaint as the Board proceeded on the basis of the factual case as he asserted.  Insofar as it is a mixed finding of fact and of law is concerned, save for the error of law mentioned above, the Court could identify no other errors of law.  The finding of fact is within the realm of the Board, which this Court may not intervene except for errors of law, procedural unfairness and irrationality.  As explained above, that error is not fatal.  It has no adverse impact on the overall Decision, which is absolutely correct.  The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  This Court is satisfied that the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

28.  For the above reasons, the Applicant’s 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

Form CALL-1