DAO TRONG CHI alias PHAM VAN CHI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1162/2021

[2021] HKCFI 3177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1162 of 2021

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 submission by the Applicant in open court;

1.   Extension of time for application for leave to apply for Judicial Review be refused; and

2.   Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The applicant entered Hong Kong from China illegally in 26/5/2015. He surrendered to the Immigration Department on the same day.   He filed his non-refoulement claim in this case on 8/7/2015 and 3/10/2018.

2.  The basis of his claim was that he would be harmed or killed by the creditor and his men if he returned to Vietnam.  He was unable to repay the debt.

3.  The Director of Immigration (‘the Director’) dismissed his claim on 7/12/2018.  His appeal to the TCAB was dismissed on 27/11/2019.  He filed an application for leave for judicial review on 17/8/2021.

Background

4.  The applicant was born on 1/11/1975 in Hai Phong, Vietnam.  He was married with one son.  His father had passed away. His mother was in Vietnam.  He was self-employed in fishing and seafood farming from 1991—2015. He and his family had not joined any organisation or party. He had never been arrested, detained, charged or imprisoned.

5.  In early 2015, he borrowed 500 million VND from a loan shark (“Tang”).[1]  He had to pay a monthly interest of 75 million VND.  He had to repay the debt within 2 years.  He thought Tang had triad background. Otherwise, he knew very little about Tang.

6.  He borrowed the loan to buy some oyster spats for farming. However, the oysters died due to problems in sea water and bad weather conditions. He could not pay the monthly interest since March 2015.

7.  Since then, Tang and his men press for repayment. They scolded him in foul language. They threatened to kill him if he could not repay. Tang and his men came again in May, they threatened to kill him. They did not assault him.

8.  He did not seek help from the police or other government authorities as it was a loan dispute.

9.  On 22/5/2015, he left his village and travelled to Mong Cai. He then sneaked into Hong Kong via Shenzhen. He surrendered to the Immigration Department on 26/5/2015 and filed his non-refoulement claim in July 2015. He had lost contact with his family.

10.  He thought Tang would be able to locate him anywhere in Vietnam. His problem was a private loan dispute. The Vietnam police would not assist. Besides, the Vietnam police was corrupt. He could not afford any bribe. They would only assist the wealthy and powerful.

The decision of the Director of Immigration

11.  The Director concluded that the risk of harm from Tang was low for the following reasons:

(a)     Tang and his men had confronted the applicant several times for repayment. They only scolded and threatened him. There was no assault. The applicant was never harmed. There was no injury attaining ‘a minimum level of severity.’  

(b)     During the encounters, Tang and his men could have injured the applicant if they wanted to. However, they never assaulted the applicant. This was strong indication that they had no intention to harm or kill him.

(c)     It was a private loan dispute. There was no evidence that the government or any public official was involved. There was no evidence that Tang would use his resources to locate the applicant anywhere in Vietnam. Tang’s influence was localised.

(d)     The Director pointed out that the Vietnam government did not enforce the law effectively.  Public officials and the police had violated the law with impunity. There was corruption and political influence on the police. There was little transparency and limited public oversight. However, there was the new Anti-Corruption Law which allowed citizen to complain against corruption and inefficient government administration. The Standing Committee on Anti-Corruption was established to tackle corruption. Several countries had assisted the government in training provincial police. There were reports that public officials were punished for corruption.  There were special police units to tackle loan sharks.  The Director found that the Vietnam government had the determination to tackle malpractices and misconduct of the police.  There was reasonable State protection.

(e)     Internal relocation was permissible under the law in Vietnam which was a large country with a population of nearly 96 million.  It was not unduly harsh for the applicant to relocate to Ho Chi Minh City and Da Nang City.

12.  The Director concluded that the applicant’s claim failed on all grounds.

The decision of TCAB

13.  An oral hearing was held on 24/7/2019.  The applicant confirmed the truth and correctness of the evidence in the Bundle.

14.  The Adjudicator pointed out various aspects of the applicant’s evidence which showed that he was unreliable.  The following is the reasons for rejecting his evidence:

(a)     The applicant stated in his NCF that he borrowed the loan in early 2015. However, he told the adjudicator that he raised the loan in April 2014.

(b)     The applicant said in the NCF that the monthly interest was 75 million VND (15%). He told the adjudicator that it was 10 million VND (2%).

(c)     The applicant told the adjudicator that Tang and his men first came for repayment in September 2014. It is inconsistent with his NCF in which he said it was March 2015.

(d)     The applicant told the adjudicator that he spent 4 months at Hai Phong from the end of 2014 to April 2015 before going to Mong Cai. In his NCF, he just mentioned that he went hiding on 22/5/2015 in Mong Cai. He never mentioned Hai Phong.

(e)     The applicant told the adjudicator that he invested the loan in breeding geese. His business failed as the geese escaped. It was aggravated by a storm. In his NCF, he mentioned that he used the loan for oyster farming. His business failed because of bad weather and poor water quality. When the inconsistencies were put to him, he asserted that he was confused. He had never operated oyster farm. The adjudicator opined that the inconsistencies were fundamental. They cast doubt on his credibility.

(f)     The applicant had no experience in geese farming. It was unconvincing that he would raise a huge loan for the business. It was against common sense that Tang—the loan shark—would take such a risk to lend money to the applicant at such a low interest rate—2%.

15.  Given the above, the adjudicator found that the assertions of the applicant in relation to the business, the loan, the threats and the pursuit for repayment were wholly unreliable.  The adjudicator rejected the applicant’s version of facts in support of his non-refoulement claim.

16.  The adjudicator found that there was no involvement of public official. There was no instigation or acquiescence by the State. There was no physical injury. There was reasonable State protection. There was no persecution as defined under the Convention. He rejected all the claims of the applicant on 27/11/2019.

Judicial Review

17.  The applicant applied for leave for judicial review on 17/8/2021. He was nearly 18 months out of time.  In his affirmation in support of the leave application, he repeated that he could not repay the loan. The gangster would kill him.  There was no specific complaint about the decision of the TCAB.

18.  The adjudicator had set out the legal principles in detail.  He had considered the evidence thoroughly. The inconsistencies in the evidence were serious. The adjudicator was justified in discounting the credibility of the applicant. I agree with the decision of the adjudicator.  There is no error of law or procedure.

19.  In my judgment, the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success.

20.  The applicant was out of time in filing the leave application by nearly 18 months.  He should have applied for extension of time.  He did not provide any explanation for the delay.  In considering whether there is good reason for the delay, I have to consider the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [2]

21.  The delay was substantial. There was no explanation for the delay. As analysed above, the intended judicial review is of no merit.

22.  In the circumstances, there is no good reason for extending the time for the leave application. I refuse leave for judicial review.

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