LE VU PHONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1136/2018

[2024] HKCFI 1365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1136 of 2018

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;

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 for leave for Judicial Review 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 19 June 2018 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 25 September2017.

2.  The Court’s enquiries revealed that the Applicant is a Vietnamese national.  He entered Hong Kong illegally on 21 October 2014 and was arrested two days later.  On 25 October 2014, he raised a non-refoulement claim.  In due course, his claim was assessed by the Director of Immigration (the “Director”) 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 under the first three grounds was dismissed by the Director’s Notice of Decision dated 9 September 2016 and his claim under the BOR 2 Risk ground was dismissed by the Director’s Notice of Decision dated 27 February 2017.  His appeals against the two Notices were dismissed by the decision of the Board dated 16 August 2017 (the “Decision”).  He also annex a copy of that Decision in his affirmation in support of his leave application.  Neither the Director nor the Board had made any decision in respect of the Applicant dated 25 September 2017.  That date is probably a typographical error and refers to the date of the Board’s Decision about five weeks earlier.  Pulling all these facts together, it is obviously the Applicant’s intention is to seek judicial review of the Decision of the Board dated 16 August 2017 dismissing his appeals against the decisions of the Director in his two Notices dated 9 September 2016 and 27 February 2017. Accordingly, leave is granted to amend his Form 86 as aforesaid to give effect to his intention.

3.  The Applicant had 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 his application may be justly determined on paper without an oral hearing. 

4.  The leave application was filed more than ten months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance andOrder 53, rule 4(1) of the Rules of the High Court, the leave application was made more than seven months out of time.  Leave is required to file the leave application out of time.

5.  In AW and Director of Immigration and William Lam[5], 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.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But as was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6], where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone.  As will become obvious from the following analysis, the Applicant’s claim is devoid of merits.  Instead of taking time to explore the explanation of the delay with him by way of oral hearing or through corresopndence, for expediency reasons the Court proceeded to consider the merits of his leave application.

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 (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that he will be harmed by a moneylender upon his return to Vietnam because he is unable to repay an outstanding debt.

7.  The Applicant, now aged 40, was born in Hai Phong City, Vietnam.  He had fifteen years of education. He graduated from the military academy and was previously a lieutenant stationed at the border control posts with Cambodia.  After leaving the military, he operated his own business of importing and exporting food products and other various goods.

8.  In 2012, his adoptive father and the then Director of the Haiphong Public Security Bureau requested his assistance to smuggle his younger brother (“X”), who was facing bribery charges, out of Vietnam.

9.  In around April or May of 2012, the Applicant facilitated X’s escape using his military contacts.  After returning to Vietnam, the Hanoi Public Security detained the Applicant and asked him to provide information of X’s whereabouts.  The Applicant claimed he did not know.  For the next three days and nights, he was subjected to severe beatings with wooden sticks.  The beatings paused when the Applicant lost consciousness and resumed when he regained consciousness.  He suffered scars on his hands and multiple internal injuries but did not disclose X’s location (the “X incident”).

10.  Subsequently, X returned to Vietnam from Cambodia to settle the matter with the Public Security and the Applicant was released.  The Applicant’s uncle mediated with several government officials on behalf of the Applicant, asserting that he was not involved with X’s affairs and should not suffer any consequences after the severe beating in the past.

11.  In 2013, the Applicant’s business suffered heavy losses.  He suspected that was because of the X incident and the Public Security had swapped and/or disrupted his cargo movements.  To help the Applicant, his uncle’s wife took out a loan of USD 1 million from a moneylender at a monthly interest of 1% under her name with the Applicant as her guarantor.  However, she disappeared in early 2014 and the Applicant, being the guarantor, had to shoulder the responsibility of repaying the loan.  He defaulted after making two monthly interest payments.

12.  A month later, the moneylender visited the Applicant at his home to collect interest payment.  The Applicant could not pay but undertook to pay in a month.  The moneylender agreed but threatened to shoot him if he failed to pay.  Another month later, the moneylender and ten associates came to the Applicant’s home to collect payment.  The moneylender held him at gunpoint while his men destroyed the furniture.  Then they took the Applicant to an unknown place where they assaulted him for 20 or 30 minutes.  He suffered a broken arm and was hospitalised for about a month.

13.  The Applicant fled to Ho Chi Ming City in around August or September 2014 and lived in the home of different friends.  Towards the end of September 2014, after learning that his parents and sister were beaten up by the moneylender, he fled to Hong Kong.

14.  The Applicant claimed that his adoptive father, his uncle and X had all been arrested by the Public Security.  His family had also fled Vietnam to avoid the moneylender.  He claims that the Public Security in Vietnam is corrupt and because of the X incident, he thinks they would not protect him.  He does not think he could safely relocate to another place in Vietnam for any long period because the moneylender would be able to locate him through his network.

The finding of the Board

15.  The Board scheduled an oral hearing to hear the Applicant’s appeal, but he did not turn up.  He did not respond to the Board’s letter dated 11 July 2017 requesting for explanation for his absence.  Thus, the Board proceeded to determine his appeal in his absence.  It assessed his claim on the basis that the events he relied on were true.  It treated the X’s incident as part of the contemporaneous background leading to the borrowing from the moneylender and that the ill-treatment the Applicant suffered at the hands of the Public Security are distinct and not related to his claim of harm from the moneylender.  It found the Applicant’s business failure had no nexus with his problem with the Public Security or his adoptive father’s or his uncle’s loss of power and influence in the Vietnamese government.

16.  In respect of the Torture Risk ground, the Board found that the injuries inflicted by the moneylender were not the most serious and did not attain the minimum threshold of severity. There was also no evidence to suggest that the Vietnamese authorities were involved in or acquiesced to the acts of the moneylender.  Further, on the basis of authoritative and credible country of origin information (“COI”), the Board accepted that the Vietnamese authorities have the ability to maintain law and order and have taken active action against illegal moneylending and debt collection activities.  It found it was the Applicant’s own decision not to seek help from the Public Security presumably because of his previous experience arising from the X’s incident and not that adequate state protection is not available.  The Board therefore found the future risk of harm is low and remote. 

17.  As for BOR 3 Risk, the Board found for the same reasons that the risk the Applicant suffered did not meet the minimum threshold of severity and the future risk of harm is low.

18.  In relation to Persecution Risk ground, the Board noted that the Applicant’s disputes with the moneylender was purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

19.  In relation to BOR 2 risk, it held that the Applicant failed to provide any evidence that his life would be arbitrarily deprived of upon his return.

20.  The Applicant had received higher education and worked in the military.  Hence, the Board found with this background, the Applicant should be able to safely relocate to other parts of the country, such as Ho Chi Minh City, and make a living there.

21.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against 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[7].

Grounds for judicial review

23.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he raised 15 grounds of complaint under the heading of irrationality, and procedural impropriety.  These grounds may be summarised as follows:

(1)  Irrationality – failure to consider the concept of state acquiescence;

(2)  Procedural impropriety – insufficient inquiry;

(3)  Procedural impropriety – failure to give reasons for decision;

(4)  Procedural impropriety/Unfairness – failure to investigate into the COI;

(5)  Irrationality – failure to place weight on relevant information and selectively placing weight on irrelevant information;

(6)  Irrationality – failure to consider a consistent system of human right violations;

(7)  Failure to consider if state protection exists in Vietnam;

(8)  Irrationality – placing weight on irrelevant matters or inaccurate or incorrect facts;

(9)  Procedural impropriety – failing to call for psychological and/or psychiatric reports;

(10)  Procedural impropriety – applying the incorrect standard of proof;

(11)  No reasonable basis for rejecting the Applicant’s credibility;

(12)  Failure to consider the extended form of state acquiescence;

(13)  Failure to consider COI reports in assessing risk to the “i a le vu phong”;

(14)  Procedural irregularity – the interviewer is not the decision maker; and

(15)  No proper basis for consideration of internal relocation.

24.  The Applicant also annexed a copy of the Decision and a nine-page typed document, titled “The Grounds for the Application are as follows” (the “Document”).  It contains some of the grounds mentioned above, legal principles relating to non-refoulement protection, quotations from judicial precedents, Immigration Ordinance and The Hong Kong Bill of Rights. They appear to have been copied from a number of different applications or templates which have no bearing to the facts of this application.  Many of the quotations are fragmented, inchoate and do not make much sense whether by itself or in the context of this application.  He had been invited by the Court via its letter dated 24 November 2023 to advise the Court of his first language and to file submissions.  He did not respond.  This Court has no disagreement with the quotations from judicial precedents and legal principles quoted in the Document.  Insofar as they are relevant to the Decision, this Court is satisfied that they have been observed and properly applied.  In respect of matters which may be regarded as grounds of application, they are covered by grounds summarised in the above paragraph and will be considered below.  For the purpose of this leave application, it will suffice dealing with the above fifteen grounds and making an overall scrutiny of the Decision for errors of law, procedural unfairness or irrationality.

Grounds (1) and (12) – State acquiescence and extended form of state acquiescence

25.  The Board did not find it necessary to assess if the ill-treatment inflicted by the Public Security attained the minimum level of severity.  Even if it did, as was mentioned in paragraph 15 above, the Board treated the ill-treatment inflicted on the Applicant at the hands of the Public Security as a result of the X’s incident separate and distinct from that inflicted by the moneylender.  The X’s incident was part of the contemporaneous background leading to the borrowing from the moneylender and the ill-treatment on the Applicant which followed after his failure to pay interest.  It has nothing to do with the ill-treatment by the moneylender.  It cannot support the Applicant’s claim for protection against the moneylender.  Thus, even if there was state acquiescence in the ill-treatment of the Applicant by the Public Security, it is irrelevant to the Applicant’s claim for protection against the moneylender.  Furthermore, on the Board’s finding, the ill-treatment by the moneylender did not even attain the minimum level of severity as to entitle the Applicant to non-refoulement protection.  Thus, whether such ill-treatment was inflicted with state acquiescence is also irrelevant.

Ground (2) – Insufficient inquiries

26.  The Applicant did not specify what was insufficient and what inquiries would have been sufficient. It could not be directed at inquiries into the COI as there is a specific ground relating to the COI.  This ground must be directed at the Board’s failure to make adequate inquiries into the facts supporting the Applicant’s non-refoulement claim, other than the country condition in Vietnam, ie the COI.  The Board accepted the evidence relating to the Applicant’s claim in toto.  Other than the COI, it did not rely on any facts outside the case as presented by the Applicant.  There could not be any valid complaint about the Board’s failure to investigate.  The Applicant bears the burden of proving his claim.  He cannot raise a claim and sit there, leaving it to the Director or the Board to establish his claim for him: TK v Michael C Jenkin[8].  He did not identify what inquiries the Board failed to make.  If there is any failure, it would be his own failure to bring such facts to the attention of the Board.

Ground (3) – Failure to give reasons for decision

27.  The Board gave a thirteen-page Decision in Chinese.  Having examined the Decision with anxious scrutiny, the Court is satisfied that the Board had quoted the relevant evidence presented by the Applicant, the evidence it relied on in the COI, the facts it found, its conclusion and full reasons for its conclusion.