|
HCAL 158/2022
[2022] HKCFI 1592
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 158 of 2022
| BETWEEN |
|
|
|
Bui Van Ban |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
|
1st Putative Respondent |
|
Director of Immigration
|
2nd Putative Respondent |
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:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 18 October 2021 (the “Notice”) and the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated20 January 2022 (the “Decision”).
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also.
3. The Applicant is a national of Vietnam, now aged 38. He entered Hong Kong on 23 December 2013 illegally and surrendered to the authorities on 27 December 2013. He claimed to have lodged a refugee claim with UNHCR on 24 December 2013, which was terminated after the commencement of the Unified Screening Mechanism (“USM”). On 9 April 2014, he raised a non-refoulement claim. On 7 June 2016, the Director notified him that his claim would not be processed further because of his failure to maintain contact with and provide information to the Director. Five years later, he raised a non-refoulement claim again on 30 July 2021 by written representation and completed a formal non-refoulement claim form dated 1 September 2021 (the “NCF”).
4. In due course, his non-refoulement claim was assessed on all four applicable grounds under the, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 18 October 2021, the Director rejected his claims under all four applicable grounds.
5. He appealed to the Board against the decision of the Director in the Notice. By its Decision dated 20 January 2022, the Board dismissed his appeal. On 9 February 2022, he applied for leave to apply for judicial review of that Decision. The Applicant 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
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 claimed that he will harmed by a moneylender Bui Van Tuan (the “Moneylender”) because of his inability to repay the outstanding loan owed to the Moneylender.
7. The Applicant was born and raised in Haiphong, Vietnam. He has two brothers and his family resides in Vietnam. He received 12 years of education and had ten years of working experience in farming, shipping and other odd jobs.
8. Since around 2008, the Applicant started his own shipping business transporting coal and other raw materials. In around early 2010, he borrowed VND 500 million at an interest rate of VND 50 million per month from the Moneylender for the purpose of expanding his business. The Moneylender is a renowned loan shark with triad background, extensive network and police protection in Vietnam. Under the agreement, there was no specified date for repayment of the principal. He signed a loan agreement and a photograph was taken as evidence of the agreement.
9. The Applicant put all the borrowed money into his business. He hired more employees and bought new ships. He was able to repay interest between early 2010 and early 2011. However, one of his ships had an accident and he had to pay his client for the goods lost at sea. He became unable to pay interest since mid-2011. The Moneylender gave him a grace period of two months to pay.
10. The Applicant was unable to pay after the grace period expired. The Moneylender went to his home with about twelve associates. They damaged his furniture, doors and windows. The Applicant’s parents were scared and hid in a corner. The Moneylender threatened to kill the Applicant and his family if he could not pay. He slapped the Applicant’s parents once and the Applicant several times. The Applicant and his parents did not seek medical treatment because their injuries were not serious. The Applicant made a report to the police but the police refused to entertain his complaint.
11. Out of fear, the Applicant moved to residences of different friends every four or five days for about a year to avoid the Moneylender. He learned from his parents that the Moneylender had come to their home one month after the above incident and slapped his parents and damaged the furniture. After that, the Moneylender came to their home every month to ask for the Applicant’s whereabouts. After realizing that his parents had no means to pay for the Applicant and could not provide his whereabouts, the Moneylender stopped harassing them, but threatened them verbally.
12. Towards the end of 2012, the Applicant went to Hanoi to seek job opportunities. He ran into the Moneylender and four or five of his associates in mid-2013. They assaulted him for 10 to 15 minutes. The Moneylender vowed to find him and kill him.
13. The Applicant fled to Móng Cái after the attack. To expedite his escape, he did not seek any medical treatment. With the help of his friend, he fled to Hong Kong via Mainland China. He did not encounter the Moneylender during his stay in Móng Cái.
14. Since arriving Hong Kong, the Applicant maintained contact with his parents once a month. He was told by them that the Moneylender and his associates had been loitering around their home checking if he had returned.
15. The Applicant claimed that he could not seek protection from the Vietnamese police because he and his family had been discriminated by the Vietnamese authorities for having escaped to Hong Kong in 1989 to seek refugee protection and for helping others to escape from Vietnam. Allegedly, they had been stripped of their rights to participate in political activities and to receive education or health benefits and were banned from working in the government.
The finding of the Board
16. The Applicant testified at the hearing before the Board. The Board found him incredible and unreliable and did not accept his account. It identified numerous inconsistencies between his evidence in his NCF and his testimony before the Board, including:
(1) In his letter to the HKSAR government and the Director dated 30 July 2021, seeking protection under the Hong Kong Bill of Rights Ordinance and the 1951 Convention relating to the status of Refugees, the Applicant’s claim was founded on persecution by the Vietnamese government. He made no mention about the loan or the Moneylender. The Board found it incredible that he would have omitted mentioning these facts in that letter, if they were true, for they formed the centrepiece of his claim for non-refoulement protection;
(2) In the NCF, the Applicant alleged that the Moneylender visited his home in Vietnam to look for him from time to time. However, in the testimony before the Board, he said that the Moneylender never looked for him in his home;
(3) In the NCF, he claimed to have signed a loan agreement with the Moneylender and a picture was taken of the agreement. In his testimony, he claimed that the process of taking out the loan was filmed but he did not sign any agreement;
(4) In the NCF, the Applicant did not explain why he did not take his parents with him when he left for Hong Kong. When asked by the Board why he did not do so, he testified that his parents had told him that the Moneylender would not do anything to his parents because they are too old to work. The Board found it incredible that the Applicant would have omitted this information in the NCF, if it were true.
17. The Board also found it inherently improbable that the Applicant would have so many friends to accommodate his move from place to place every four or five days for about a year. It also did not believe that the Moneylender would have failed to ask for his address when the Moneylender met him in Hanoi in early 2013, given that the Moneylender vowed to find him again.
18. In conclusion, the Board found that the Moneylender had no intention to seriously harm or kill the Applicant and that the attacks were meant to put pressure on him to pay. This is because the injuries suffered by the Applicant were not serious; and despite the Moneylender had two opportunities to cause him serious injuries, the Moneylender did not do so. The Board did not accept that the Applicant would face serious harm from the Moneylender upon his return to Vietnam. Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board held that the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM.
19. Given his age, education and work experience, the Board also found that the Applicant may safely relocate to Ho Chi Minh City or Da Nang and it would not be unreasonable to expect him to do so.
20. For the above reasons, the Board dismissed his appeal.
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[7]. 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
22. The Applicant did not put forward any grounds in his notice of application for leave to apply for judicial review. In his supporting affirmation, he averted:
“I Do not Agree with the Decision of Torture Claims Appeal Board so I want to file a Judicial Review against them. Because I can not Return back now. My life will be danger over there so I hope to submit this petition to the court to Judicial Review.”
The Applicant is in fact disputing the Board’s finding of fact. In substance, he is seeking to appeal the Board’s finding of fact in an application dressed up as a judicial review.
Discussion
23. 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. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that he had failed to discharge the burden of proving the factual basis of his claim to non-refoulement protection and that it is safe for him to return to his home country. He has not raised any valid ground for judicial review. In the absence of any valid ground for judicial review, the Court could only focus on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
24. 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 found the Applicant not credible. Basically, the Board found the Applicant failed to discharge his burden of proving his fears and risks. It was on that basis that the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds under the USM. 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
25. For the above reasons, leave to apply for judicial review was refused.
Dated 6th day of June 2022.
| |
( Allen LEE ) |
| |
for Registrar, High Court |
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:
|
|
|
|
|
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)). |
|
Sent to the Applicant
on 6/6/2022
Bui Van Ban
Applicant’s ref. no:
Nil. |
|
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 6/6/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1stPutative Respondent’s ref. no.:
USM 19054/21/10/180/V3158
Director of Immigration
2ndPutative Respondent’s ref. no.: QA T/C 1540/21 (formerly RBCZ 5000016/21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Section 37ZR of the Immigration Ordinance, Cap. 115
[2] [2018] HKCA 549
[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 para 14(1)
|