LE CONG MANH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 208 /2023

[2023] HKCFI 1205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 208 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 filed on 13 February 2023 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-refoulement Claims Petition Office (the “Board”) dated 25 April 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 January 2021 (the “Notice”) refusing his application for non-refoulement protection.

2.  His leave application was made about six and half 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 (Cap 4A), it is about three months out of time.  Leave to file the leave application out of time is required.  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.  In Po Fun Chan v Winnie Cheung[2], the Court of Final Appeal held that 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 leave may be refused on this ground alone.  However, this Court proceeded to consider the merits as well just in case something might have gone amiss. 

3.  The Applicant is a Vietnamese national.  He was arrested on 9 July 2020 for remaining in Hong Kong without authority.  On 20 July 2020, he raised a non-refoulement claim by written signification.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6].  On 20 January 2021, 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 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 his non-refoulement claim forms (“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 or killed by a moneylender (the “Moneylender”) if returned to Vietnam because of his inability to repay a loan owed to the Moneylender.

5.  The Applicant is married with two daughters.  He received 12 year’s education.  In September 2017, he borrowed 500 million Vietnamese Dong (“VND”) from the Moneylender for a term of one year at a monthly interest of 30 million VND.  The loan was to finance his operation of a seafood farm. 

6.  He operated his farm in a low lying area.  In June 2018, a flood flushed away all his seafood.  He was not given any compensation by the government.  He continued paying monthly interest to his Moneylender until September 2018 by borrowing from his relatives, but was unable to pay thereafter.  In October 2018, the Moneylender and about ten of his henchmen came to his house to demand payment.  They assaulted him causing serious injuries to his neck, hands, legs and shoulders.  The Moneylender gave him a month to repay the principal and warned that if he could not pay or if he complained to the police, he would be killed.  The Applicant went to a hospital to treat his injuries.  He was given some painkillers, but was not hospitalised.  Then, he went to hide in Ho Chi Minh City.

7.  His friends advised him to come to Hong Kong to seek refuge.  He fled to Mong Cai.  From there, he entered Dongxing, China illegally and then sneaked into Hong Kong via Shenzhen.

The finding of the Board

8.  The Applicant testified before the Board.  His evidence departed from his NCF.  He made new allegations of assaults.  He said he was assaulted on three other occasions resulting in serious injuries.  He was assaulted on his head and suffered brain damage.  He had blood running out of his head and a scar.  He blamed the interpreter for not understanding his evidence and creating the inconsistencies.  He said that his seafood was not flushed away by the flood but did not grow as a result of water pollution caused by the flood.  He was unable to condescend on particulars about the operation of his seafood farm and the new allegations.  His explanation was that his brain was not working well and he could not remember because of the assault by the Moneylender.  The Board found him incredible and rejected most of his account as untruthful.  It did not accept that he had been operating a seafood farm between 2016 and September 2017, that he had borrowed 500 million VND from the Moneylender and spent the loan in investing and operating the seafood farm, that a flood occurred in June 2018 and flushed away all his seafood, that he had borrowed money from his relatives to pay interest to the Moneylender, that he had been assaulted and threatened by the Moneylender and his henchmen and that he hid himself in Ho Chi Minh City until he came to Hong Kong.

9.  On the basis of authoritative and credible country of origin information, the Board was also satisfied that the Vietnamese government would not be unwilling and/or unable to provide effective protection if requested by the Applicant and that he could also relocate to other parts of Vietnam where he could reasonably live without fear of persecution or undue hardship.  The Board found there is no real risk that the Applicant would suffer any of the proscribed harm, if returned to Vietnam.  Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish his entitlement to protection under any of the applicable grounds.  Hence, it dismissed their appeal.

Legal principles applicable to judicial review

10.  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

11.  The Applicant advanced the following four grounds of application in his supporting affirmation:

(1)  The Decision was not reasonable and unfair.  The adjudicator failed to give him sufficient time and chance to arrange relevant evidence.

(2)  The Director failed to give proper weight to the presence of state acquiescence.  He was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Director failed to take such (above) arguments into account.

(4)  This was a clean case of unfair attitude shown by the Director.  The corruption and incompetency of the administration in his country is still a very serious problem.  The Director failed to attain the high standard of fairness required by the Wednesbury test.

Ground (1) – Unreasonable and unfair

12.  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 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 any asylum seeker whose life is at risk, provided he meets the criteria under any of the four applicable grounds under the USM.  The question is whether the Applicant met 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 Board’s finding and complained that the Decision was unfair and unreasonable.  Thus, this ground of application boils down to two points; namely whether the Decision was irrational, and whether the Board had given the Applicant sufficient time and chance to arrange the evidence. 

13.  The essence of the Applicant’s ground is that the Decision is unreasonable and irrational.  But he did not give particulars as to why the Decision is unreasonable and irrational.  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.  Basically, the reason is that the Applicant failed to discharge the burden of proving his fears and risks, that his fears and risks meet the criteria under any of the four applicable grounds.  The Board’s finding could not be criticized as irrational.

14.  As for the Applicant’s complaint that the Board did not give him sufficient time and chance to arrange the evidence, it is just an unsupported bald assertion.  He had almost six months in between the date of the Notice and the hearing before the Board to arrange his evidence.  If he considered he did not have sufficient time to arrange his evidence, he could have informed the Board or sought an adjournment at the hearing for him to do so.  It lies ill in his mouth to say he did not have sufficient time.  This ground has no conviction at all.  Obviously, this ground is cloned from some other applications for judicial review.  It is wholly inconsistent with the facts of this case.

15.  At the hearing, he made the further allegation that he was never informed about the decision from Wanchai (by which he must mean the Decision of Board sitting in Immigration Tower in Wanchai) until a year later when he was detained in Tai Tam Gap Correctional Institution and he was unable to recollect anything.  That is blatantly untrue.  The Decision was made on 25 April 2022 and he was able to make the present leave application within three months after the date of the Decision.

Grounds (2) – State acquiescence; torture at the behest of state law enforcement agencies 

16.  For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that he was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account.  The only torture or ill-treatment he ever received was the four incidents which caused him little harm.  There is no evidence that state law enforcement agencies were involved in those incidents.  When this was explained to him at the hearing, he agreed.  This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case.

Grounds (3) – Weighting on COI 

17.  The Applicant complained about the weighting given to the COI.  In his favour, the Court assumed that complaint included at least the failure to take into consideration the corruption and incompetency of the administration in his country in giving him protection.  After referring to COI from credible sources, including the 2019 Country Report on Human Rights Practices: Vietnam issued by the Department of State of the United States, the Board found, despite inadequacy in the administration, that state protection is available and internal relocation a possible option.  This is a finding of fact within the province of the Board.

16.              Furthermore, for good reasons the Board found that the Applicant had failed to prove his fear and risk of harm was genuine.  On this finding, there is no factual basis to support his claims for non-refoulement protection on any of the four applicable grounds.  His claims were dismissed on that basis.  In other words, the Applicant is not at risk at all.  He had no need for state protection or internal relocation.  Hence, corruption and incompetency of the administration may no relevance.  What the Board found about availability of state protection and internal relocation was unnecessary for the Decision. Therefore, there is no substance in this ground. 

Ground (4) – Unfair attitude and breach of high standard of fairness

17.              Again, for the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well.  The Applicant argues that this was a clean case of unfair attitude shown by the Director (and the Board) and their breach of the high standard of fairness required by the Wednesbury test. At the hearing, he was unable to give particulars of unfairness and breach of duty.  Taking a global view of the Applicant’s case, the finding of the Board and the above grounds, there is no substance in this ground as well.

Conclusion

18.  For the above reasons, none of the grounds advanced by the Applicant has substance.  In overall terms, the Applicant is in fact attempting to challenge the Board’s finding of fact under the guise of judicial review.  As mentioned above, 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 role of the Court in judicial review is not to re-assess the non-refoulement claims afresh.  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[8].

19.  On the basis of his evidence, the Board was not satisfied that the Applicant has proved his fears and risks are genuine and that those fears and risks fall within the criteria entitling him to non-refoulement protection under any of the four applicable grounds.  The Board gave reasons for its Decision.  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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Court could detect no errors of law or procedural unfairness in the making of the Decision.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for

non-refoulement protection under any of the four applicable grounds.  The Decision is utterly without fault.  The Applicant’s grounds for judicial review are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, 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

[1]  CACV 63/2015 (unreported) 3 November 2015

[2]  (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ

[3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[5] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[7]  [2018] HKCA 524 at [14(1)]

[8]  [2018] HKCA 524 at [14(1)]