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HCAL 1385/2022
[2024] HKCFI 951
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1385 of 2022
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BETWEEN
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Nguyen Thi Hien |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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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:
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 1 December 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 23 November 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 November 2021 (the “Notice”).
2. The Applicant is a Vietnamese national. She entered Hong Kong illegally on 23 July 2021 and was arrested on 30 July 2021. On 5 September 2021, she raised a non-refoulement claim. In due course, her claim was assessed 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]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. 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 claims that she would be harmed by a moneylender known as Tran Van Quang (the “moneylender”) upon her return because of her inability to repay her loan.
4. The Applicant, now aged 42, was born in Hai Phong, Vietnam. She received four years of education and has ten years of working experience as a hawker. She started her own business selling fruit in December 2018.
5. In April 2020, she borrowed 600 million Vietnamese Dong (“VND”) at a monthly interest of VND 20 million from the moneylender to expand her fruit business from retail to wholesale. There was no fixed date for paying back the principal. She was able to pay the monthly interest between May and August 2020.
6. In August 2020, the Applicant closed down her business because of the pandemic and became unemployed. She obtained a six-month grace period for paying back the loan. She was unable to pay. In March 2021, the Moneylender gave her another month to pay and threatened to kill her unless she paid back the loan.
7. In April 2021, the Applicant moved to live with her sister in Duong Quan. Her daughter told her that the moneylender visited her home from time to time and threatened to kill her if she did not pay back the loan.
8. The Applicant returned to her home in mid-July 2021 to look after her mother. About three days later, the moneylender arrived at her home with three or four men. They locked her daughter in a room and assaulted the Applicant in front of her mother. They slammed her head on the floor and hit her with bare hands for about five or seven minutes. They threatened to harm her mother and her child if she did not pay. The Applicant suffered bruises all over her body. She applied some ointment and it took her several days to recover.
9. On the next day, her mother and daughter moved to live with another sister of the Applicant. A day or two later, the Applicant fled to Mong Cai and then to Hong Kong.
10. After arriving in Hong Kong, her family told her that the moneylender was still looking for her and had vowed to kill her. Though the moneylender knew that the Applicant’s family was residing with her other sister, he did not harm them.
11. The Applicant did not believe the Vietnamese police would help her, as she did not have money to bribe them. She did not believe internal relocation would be viable because the moneylender would be able to locate her anywhere in Vietnam.
The finding of the Board
12. The Applicant testified before the Board. The Board found her evidence vague, inconsistent and incredible. She had told the Director that she closed her stall in August 2020, but she told the Board that she closed it in March 2021.
13. The Board found it unbelievable that she solely relied on the loan from the moneylender to open a fruit stall without any saving of her own. The Board found it inherently improbable that the moneylender would have granted her a grace period of six months to pay when she had ready closed down her fruit stall and had no prospect of making any money for repayment. The Board found it illogical that having moved to Duong Quan to escape from the moneylender she chose to return to her home for a few days in mid-July 2021 at great personal risk to herself to take care of her mother, when she could have asked her sister who resided nearby to do so. The Board also found her incredible and rejected her evidence. Having dismissed the only factual basis in support of her claim for protection, the Board found that she failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Vietnam.
14. However, the Board also assessed the Applicant’s claim on the basis of the case as she alleged. It made the following alternative finding. It found that the Applicant only suffered minor injuries as she was able to travel from her home to Mong Cai after the attack without need for hospital treatment. The Board found that the low intensity of the injuries suggested that the future risk of harm would be low and would not attain the requisite threshold to qualify for protection. It found her dispute 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 1951 Convention relating to the status of Refugees and its 1967 Protocol. It also found that the moneylender was not acting with the authority or acquiescence of the Vietnamese government. On the basis of authoritative and credible country of origin information (“COI”), the Board was satisfied that adequate state protection would be available to the Applicant upon her return to Vietnam; and that with her education and work experience, it would not be unduly harsh to expect her to relocate to Ho Chi Minh city, Ha Noi, Da Nang or Nha Trang to avoid the perceived risks from the moneylender. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board reached the same conclusion that the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
15. 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[5].
Grounds for judicial review
16. At the hearing, after the above legal principle had been explained to her, the Applicant repeatedly confirmed that she had no complaint about errors of law, procedural unfairness or irrationality in the Decision but reiterated that she will be harmed or killed by the moneylender on her return to Vietnam for being unable to repay her loan (the “first ground”).
17. In her supporting affirmation she annexed a two-page typed statement in English complaining about unfairness and irrationality in that the Board failed to give proper regard to the presence of state acquiescence; that the Board did not give weight to COI which support the aversions that the police would not be able to protect her and found to the contrary that state protection is available; and that she was asked questions which she was not in a position to answer (the “second ground”).
Discussion
18. The Applicant’s first ground of review that she will be killed by the moneylender is the basis of her claim for non-refoulement protection. Whether her risk and harm is proven is a question of fact for the Board and could not be a proper ground for review, though whether that finding was made as a result of error of law, procedural unfairness or irrationality could be. This ground is, in effect, a direct challenge of the Board’s finding of fact that the Applicant’s life will not be at any proscribed risk of harm on her return to Vietnam, which is not permissible. On the Board’s primary finding, the Applicant was incredible and had failed to prove the factual basis on which her claim for protection was founded. Hence, she had failed to prove the existence of the debt, her obligation to repay and risk of harm from the moneylender. This is a finding of fact which the Court in a judicial review will not interfere.
19. On the Board’s alternative finding, assuming that she was indeed unable to repay the debt she owed to the moneylender and was threatened with death, the Applicant was not entitled as a matter of law to protection under any of the four applicable grounds under the USM for reasons as explained in paragraph 14 above. In other words, even if the risk is real, it is not a proscribed risk in respect of which the Applicant is entitled to protection by the international community. This is a mixed finding of fact and of the law. Insofar as it involves finding of fact, the finding is exclusively within the province of the Board, which the Court on a judicial review will not interfere. Insofar as it is finding of the law and application of the law to the fact found, it is absolutely correct. There is no substance in this ground of application.
20. Under her second ground, the Applicant made some general allegations of procedural unfairness. Initially, she was adamant that the grounds were prepared by her. But when she was asked to explain those grounds, she was unable to and said that they were prepared by someone in English on the basis of what she said in Vietnamese. However, she was unable to provide particulars when the Court attempted to explore the particulars with her. She even admitted that she did not understand what “state acquiescence” meant, suggesting that she was not the author of that ground. She was unable to identify the COI referred to in her grounds. She could not recall what questions were asked by the Board which she was not in any position to answer. She explained that it was too long ago that she could not remember.
21. The Applicant could not even make out what this ground is. On the Board’s finding, not only was there was no evidence of state acquiescence, the Board made an express finding that the moneylender was not acting with state authority or state acquiescence. That is a finding of fact. The Board referred to COI, some of which support the Applicant’s aversions, some supported a more positive view that the Vietnamese government is combating corruption and illegal debt collection activities showing that state protection is available. The Board adopted a balance approach. It was open to the Board to make the finding as it did. It also found internal relocation a viable option for the Applicant. All these are finding of fact which the Court may not interfere. It is impossible to follow up on the Applicant’s complaint about being asked questions which she was not in a position to answer for want of particulars. Even if the Applicant had been asked such questions, it is impossible to assess the effect it would have on the Board’s decision due to lack of particulars. There is no merit in this ground.
22. The best the Court could do is to rigorously scrutinise the Decision for errors of law, procedural unfairness and irrationality. Having so examined the papers and the evidence, the Court is 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; correctly identified the issues and observed a very high standard of fairness.
23. Putting aside the Board’s primary finding that the Applicant had failed to prove the factual case on which her claim for protection is founded, the Board also assessed her claim on the basis of the case as she asserted. It was on the basis of her evidence, the Board made the alternative finding that even on that basis the Applicant is not as a matter of law entitled to protection under any of the applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively 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. Insofar as they are finding of the law and application of the law to the facts found, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings whether on the primary or alternative basis of its Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
24. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 2nd day of April 2024.
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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 the Applicant’s 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 2/4/2024
Nguyen Thi Hien
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 2/4/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19275
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1873/21 (Formerly RBCZ 5000164/21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] [2018] HKCA 524 at [14(1)]
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