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HCAL 1549/2019
[2023] HKCFI 2972
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1549 of 2019
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BETWEEN
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Phung Thi Hue |
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 refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 6 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 27 May 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 November 2017 (the “Notice”).
2. She had not requested an oral hearing. Having considered the nature of the application, the issues raised, the Decision, the papers, and all the circumstances, the Court considered her leave application may be justly determined on paper without an oral hearing. The Decision was written in Chinese. However, as the Applicant made her submission in English, she is deemed to have elected to use English in these proceedings. Hence, this Form CALL-1 is written in English.
3. The Applicant is a Vietnamese national. She entered Hong Kong on 10 July 2016 illegally and was arrested on 17 July 2016. On 25 July 2016, she raised a non-refoulement claim. In due course, her non-refoulement 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
4. 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, the Applicant claims that if she is returned to Vietnam, she will be tortured and killed by a moneylender (the “Moneylender”) and his men because of her inability to repay her loan owed to the Moneylender.
5. The Applicant, now aged 49, was born and raised in Haiphong, Vietnam. She had received ten years of education and had worked as a garment worker between 1990 and 1997. She stopped working after getting married in 1997. In January 2011, she started a detail business selling cloth with an interest free loan from a friend.
6. In May 2011, in order to expand her business, she borrowed 500 million Vietnamese Dong (“VND”) from the Moneylender, whom she heard had triad connections. Under the loan agreement, she had to pay monthly instalments of 20 million VND for a term of three years. She repaid the loan from her friend. She was able to to pay instalments to the Moneylender until May 2012 when her business declined as a result of general recession in Vietnam. In the same month, a fire broke out and destroyed all her stock.
7. Then, one morning in March 2014, the Moneylender and his men armed with knives came to the Applicant’s home to demand payment. The Applicant explained her difficulties and begged for time to pay. The Moneylender gave her two months to pay. As they were leaving, they threatened to kill the Applicant unless she was able to pay when they come next time and warned her not to report to the police.
8. The Moneylender and four of his men came again in May 2014. The Applicant was unable to pay. They demanded her to make payment by working as a prostitute or trafficking in drugs. The Applicant refused. The Moneylender became angry and ordered his men to assault her and damage the furniture in her home. They tied her up and beat her for two to three minutes. They also cut her leg, leaving a scar of ten cm. They held a knife on her neck and threatened to kill her next time the they came, unless she managed to pay back the loan in full. The Applicant was hospitalised for a week. After her discharge from hospital, she hid in her parents’ home until 1 July 2016 when she sneaked into Mainland China and then into Hong Kong.
9. The Applicant believed the Moneylender had extensive connections in Vietnam and would be able to locate her regardless of her whereabouts. She did not wish to expose her relatives to her problems or live in constant fear in Vietnam. She did not believe the police or the authorities in Vietnam would offer her protection since her indebtedness was her fault and the authorities would not help the poor.
The finding of the Board
10. The Board determined the Applicant’s appeal without an oral hearing. It assessed her claim on the basis of her case as she asserted. It took into consideration the country of origin information (COI) about the conditions in Vietnam at the material time. It accepted that corruption in Vietnam was serious. It noted that the Vietnamese government took steps in combating corruption, making changes to its legal framework, removing corrupt officials and corrupt police officers, and improving professionalism in the police. It noted that the public were more ready to report police abuse. It also noted that the police took action against illegal moneylending and illegal debt collection activities.
11. In respect of BOR3 Risk, the Board found the injuries sustained by the Applicant did not attain the minimum level of severity. After her discharge from hospital, she was able to travel to her parents’ home, help in their business and later sneak into China and then Hong Kong.
12. As for Persecution Risk, the Board found the Moneylender’s intention in ill-treating the Applicant was to coerce her to repay the loan and had no intention to kill her. It found her belief that the police would not protect her was contrary to the COI showing the police action against illegal moneylending and debt collection activities. It found her belief was unfounded. Hence, it considered her risk of persecution is remote and in any event her dispute with the Moneylender arose out of a private matter and her feared ill-treatment was not on account of any of the reasons protected by 1951 Convention relating to the status of Refugees and its 1967 Protocol.
13. As for Torture Risk, the Board found the feared harm did not meet the definition of torture within the meaning of Section 37U(1) of the Immigration Ordinance and the risk of serious harm upon her return to Vietnam would be low. Further, there was no evidence of any involvement or acquiescence by the Vietnamese government in the Moneylender’s ill-treating the Applicant. Hence her claim under Torture Risk ground failed.
14. As for her BOR2 Risk, the Board found as the Vietnamese government had not taken any steps to arrest and prosecute the Applicant, this risk was not engaged. There was no evidence to suggest that her life would be at stake upon her return.
15. There was also no concrete evidence to suggest that the Moneylender would be able to track the Applicant down in other parts of Vietnam. It would also be difficult for the Moneylender or his men to locate her in big cities like Ho Chi Minh City or Hanoi. The Board found, as an able-bodied adult who had received ten years of education and possessed years of working skills and experience, it would not be unreasonable to expect her so relocate to avoid her risk of harm.
16. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found 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 and dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
17. 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[5].
Grounds for judicial review
18. The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she repeated the gist of her case and her fear to return to Vietnam and annexed a copy of the Decision. In her submission, she highlighted some of her evidence and reiterated her fear. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Vietnam. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, 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.
Discussion
19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted. It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on the basis of those facts that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds. This is a mixed question of fact and of law. Insofar as it is a finding of fact, it is 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 it is finding of the law, it is absolutely correct. The Court could detect no error of law in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
20. For the above reasons, leave to apply for judicial review of the Board’s Decision is refused.
Dated 16th day of November 2023.
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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 16/11/2023
Phung Thi Hue
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 16/11/2023
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9190/17/11/201/V1807
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2459/17 (Formerly RBCZ 13077/16)
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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