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HCAL2617/2018
[2022] HKCFI 2297
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2617 of 2018
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Pham Thi Hoa |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review. The Applicant identified the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) as the Putative Interested Party but not the proposed respondent in the Form 86. She identified the decision to be reviewed by date, namely 31 October 2018, but not the decision maker. In the circumstances, it is clear that she was seeking to challenge the Decision of the Board dated31 October 2018 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 February 2018 (the “Notice”). Leave was therefore granted for her to amend the Form 86 to identify the Board as the Putative Respondent and the Decision as the subject decision in this application.
2. The Applicant is a Vietnamese national, now aged 39. She entered Hong Kong on 3 November 2015 illegally and surrendered to the authorities on the same day. On 20 April 2017, 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 his Notice dated 12 February 2018, the Director rejected her claims under all four applicable grounds.
4. The Applicant appealed to the Board against the decision of the Director in the Notice. By its Decision dated 31 October 2018, the Board dismissed her appeal. On 20 November 2018, she applied for leave to apply for judicial review of that Decision. She 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 would be harmed by a moneylender (the “Moneylender”), if refouled, because of her inability to repay her loan owed to the Moneylender.
6. The Applicant was born and raised in Quang Ninh. She is married with two sons. Her family are residing in Vietnam. She received six years of formal education and has 21 years of working experience as a domestic helper, an odd-job worker and an operator of a poultry farm.
7. She had been to Hong Kong in around September 2003 to marry. The arrangement broke up and she did not marry as planned. She overstayed and was arrested in November 2004. She was convicted for overstaying and repatriated to Vietnam in November 2004. She married her husband in 2008 in Vietnam.
8. In January 2012, with the help of her family, she started a small-scale poultry farm. She raised about VND 280 million from her family. She made a small profit of about VND 1 million per breeding cycle.
9. In January 2015, she borrowed VND 200 million from the Moneylender at a monthly interest of 5% ie VND 10 million for the purpose of expanding her farm. A plague broke out in her farm in April 2015 and her poultry died. She closed her farm in May 2015 and sought employment as a domestic helper.
10. Between April and June 2015, the Applicant made interest payments to the Moneylender using her savings. As her salary and that of her husband’s could barely cover their living expenses, she was unable to make any repayment since July 2015.
11. In around late July 2015, the Moneylender sent four men to collect the outstanding interest. The Applicant explained her situation to them and asked for deferred payment. The men agreed. They left after half an hour without giving her any trouble, but they warned that they would deal with her if she failed to repay. After that, the Moneylender called her a number of times to demand repayment.
12. In late August 2015, the Moneylender and four of his men went to the Applicant’s home to demand repayment. They damaged her furniture and threatened to force her into prostitution or drug trafficking. The Applicant lied to them saying that she would ask her family to sell their home to repay. The Moneylender gave her extension of time to pay but warned that he would deal with her if she failed to repay.
13. The Moneylender came to her home again in late September to collect payment. He damaged the furniture in her home and made similar threats as in the previous occasion.
14. In October 2015, the Moneylender went to her home alone. The Applicant gave him VND 10 million as partial payment. The Moneylender said the amount was insufficient and asked her to traffic in drugs for him twice as partial repayment. The Applicant refused but promised to ask her family to sell their home to repay him. The Moneylender agreed but told her she would have to repay all her debts the next time he visited her.
15. The Applicant claimed that the Moneylender only verbally threatened her and damaged her furniture but never assaulted her. She never sought help from the Vietnamese authorities as she feared the Moneylender, whom she believed was a triad member, would retaliate and harm her or her family.
16. Then the Applicant moved to her in-law’s house with her family. They stayed there for about half a month without being harassed. However, she was afraid that the Moneylender would locate her eventually no matter where she stayed in Vietnam. Thus she fled to Hong Kong.
17. Since her arrival in Hong Kong, her family told her that they were living peacefully in her in-law’s house without being harassed by the Moneylender.
The finding of the Board
18. Applying the principle in ST v Betty Kwan & Anor[5], the Board considered that the appeal could be disposed of on paper without an oral hearing. It assessed the Applicant’s claim on the basis of the facts as she asserted. It inferred from the fact that the Applicant had never been assaulted and her family had never been harassed by the Moneylender after she had left Vietnam that the Moneylender only intended to put pressure on the Applicant to make repayment and had no intention to seriously harm her[6]. There was also no evidence that the Moneylender was a drug trafficker or that he would force the Applicant to traffic in drugs[7]. The Board therefore found that the threats and risk of harm the Applicant would face upon her return to Vietnam did not attain the minimum level of severity. Applying the law applicable to non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish any of the proscribed risks of harm under any of the applicable grounds under the USM.
19. On the basis of credible Country of Origin Information, the Board further found that state protection of an adequate standard is available to prevent or negate the risk and harm from the Moneylender. It was satisfied that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens. There was no evidence to support her claims that the Vietnamese authorities would turn a blind eye to the risk of violence or retaliation against her from the Moneylender if she made a report to the police.
20. The Board also considered internal relocation is a viable option and that the Moneylender is unlikely to be able to locate her in populous cities such as Ho Chi Minh city and Hanoi. As an able-bodied adult who had received basic education and had years of working experience, she would be able to support herself in other parts of Vietnam.
21. For all these reasons, the Board affirmed the decision of the Director in the Notice and dismissed the Applicant’s appeal.
The legal principles applicable to judicial review
22. 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[8]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
23. The Applicant did not put forward any grounds in her Form 86. In her supporting affirmation, she reiterated that as she had not paid her debt her life would be in danger if she returns to Vietnam. In essence, she is disputing the finding of the Board that she had failed to establish any of the proscribed risks of harm under the four applicable grounds under the USM.
24. She had been invited by the Court via its letter dated 10 February 2021 to advise the Court of her first language, contact number and to file submissions. She did not respond. The letter was sent by post to her address as stated in her Form 86 filed on 20 November 2018. It has not been returned through the post. She never informed the court of any change of address. There is nothing to suggest that she had not received the letter or had moved.
Discussion
25. 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. Apart from a general assertion that she disagreed with the finding of the Board that it is safe for her to return to her home country, she has made no specific complaint about error of law, procedural unfairness or irrationality.
26. 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; and observed a very high standard of fairness. The Board assessed her claim on the basis of the case as she asserted. In essence, the Board found even on the case as she asserted the Applicant had failed to establish any of the proscribed risks of harm under any of the applicable grounds under the USM. Basically, she failed to discharge her burden of proving her fears and risks. This is a finding of fact solely 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 detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
27. For the above reasons, leave was granted to amend the application in the manner as described in paragraph 1, but leave to apply for judicial review was refused.
Dated 29th day of July 2022.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 29/7/2022
Pham Thi Hoa
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29/7/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10472/18/2/356/V2006
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3613/17 (formerly RBCZ 10881/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] 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
[2] 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”)
[3] 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
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2014] 4 HKLRD 277
[6] Paragraph 64 of the Decision
[7] Paragraph 59 of the Decision
[8] [2018] HKCA 524 at para 14(1)
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