NGUYEN VAN HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1544/2019

[2023] HKCFI 2941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1544 of 2019

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 submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application 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 3 June 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 July 2018 (the “Notice”).

2.  He had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Vietnamese national. He entered Hong Kong on 18 August 2015 illegally and surrendered to the authorities on 20 August 2015. On the same day, he raised a non-refoulement claim.

4.  In due course, his 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]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

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 him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by a woman moneylender (the “Moneylender”) upon his return to Vietnam for being unable to repay a loan borrowed from her.

6.  The Applicant was born in Quang Ninh, Vietnam, now aged 57. In about January 2011, he started his business selling household products, electronics, and fashion in a wet market. To expand his business, he borrowed 1.5 billion Vietnamese Dong (VND) from the Moneylender at an exorbitant monthly interest rate of 20% and had to repay the principal and interest by 1 January 2012. The loan was secured against his ‘Red Book Land Use Right Certificate’. The evidence of the loan is evidenced by an agreement (with a two-page translation).

7.  Some of his customers who bought on credit refused to pay. By December 2011, the entirety of the borrowed money was lost in the business. Since January 2012, the Moneylender began demanding repayment. In the first incident, the Moneylender arrived with five men, verbally threatening to cut off his arms and legs if the loan was not repaid. However, they did not attack him or vandalize his home.

8.  In the second incident which took place between April and May 2012, the same group visited his residence. They threatened to confiscate the pledged property and made threats against him and his family.

9.  Finally, the Moneylender took over his residence in June 2012. The Applicant and his family moved to a rented house in Ha Long City.

10.  Although he reported these incidents to the district police, no action was taken. He attributed the police’s inaction to the police belief that the incident was merely a personal dispute. He did not make a complaint against the police or report to other police station or sought help from higher authority as he thought it was useless.

11.  The Applicant said that the Moneylender continued looking for him through his friends. He and his family moved to different hostels in Ha Long City, Vietnam and then to Dong Xing, China to avoid the Moneylender and her men. On 18 August 2015, the Applicant entered Hong Kong illegally by boat.

12.  The Applicant was informed by his son in late March 2018 that the Moneylender had offered 10 million VND to anyone who was able to find him. He thought the Moneylender still had adverse interest over him as he owed her a great amount of money.

Finding of the Board

13.  The Board determined his appeal without an oral hearing, pursuant to Section 12 of Schedule 1A to the Immigration Ordinance and paragraph 15 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme. It assessed his claim on the basis of the case as asserted by him.

14.  The Board noted in Paragraphs 24 to 32 of its Decision that the Applicant had never been subject to serious physical or mental suffering in the past and there was nothing to suggest that he would be at risk of serious harm upon his return. It found the Moneylender had no real intention to kill the Applicant and there was no substantial ground to believe that he would be subjected to a genuine and substantial risk of being killed upon his return to Vietnam. After considering the available Country of Origin Information reports, the Board noted that the Vietnamese police were generally effective in maintaining public order. There was no concrete evidence to suggest that the police would fail to provide assistance to him had he made a report. Besides, there were avenues available to the Applicant to complain against the police for abuse or neglect of duty. The Board considered his assertion that the police would not protect him was based on his subjective view only. It was satisfied that adequate state protection would be available to the Applicant in Vietnam. The Board therefore found he had failed to prove his entitlement to protection under BOR 3 Risk ground.

15.  In Paragraph 33 of its Decision under the heading of “Torture Risk”, the Board found the Applicant’s alleged fear of harm did not fall within any of the Convention Categories and was purely a matter involving personal and financial matters between him and the Moneylender. It went on to say in Paragraph 34 that it was not on account of race, religion, nationality, membership of a particular social group or political opinion and then concluded in Paragraph 35 that as such had not made out a case under Torture Risk ground.

16.  At first blush, one would have thought by ‘Convention Categories’ and with reference to race, religion, nationality etc, the Board meant the ‘1951 Convention relating to the status of Refugees and its 1967 Protocol’ (the “Refugees Convention”) and the Board might have misapplied the law relating to Persecution Risk to his claim under Torture Risk ground. But to the trained eyes of someone with knowledge of the four applicable grounds under the USM, those words meant ‘the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Convention”)’ because the Board was discussing in the context of Torture Risk ground under Section 37U(1) of the Immigration Ordinance and the definition of ‘torture’ as defined therein was adopted from Article 1 of the CAT Convention, which is:

“… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person actin g in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” (Emphasis added)

Hence, the Board went on to emphasise the significance that the dispute was a personal one between the Moneylender and the Applicant, implying that no government or public official was involved. In discussing the legal principles relating to Torture Risk ground in Paragraph 4 to 6 of its Decision, the Board clearly identified the need to prove this element of involvement by government or public official to establish a claim under Torture Risk ground.

17.  In Paragraphs 36 to 39, under the heading of “Persecution Risk”, the Board found the Applicant’s fear of ill-treatment did not fall within the definition of persecution because his fear of ill-treatment was due to personal and private affairs with the Moneylender. It went on to say that the risk was not on account of race, religion, nationality, membership of a particular social group or political opinion, though without quoting the Refugees Convention. Hence, it concluded that the Applicant had not made out a case under this head of claim, ie Persecution Risk ground.

18.  In Paragraphs 40 to 43, under the heading of “BOR 2 Risk”, the Board held that the Applicant had failed to prove that he is subject to death sentence in Vietnam and that his absolute and non-derogable rights under BOR 2 is at real risk if returned to Vietnam.

19.  The Board further held that being an able-bodied person with substantial working experience, he could safely relocate to Ho Chi Minh City or Ha Noi City where the Moneylender would not have the means to locate him.

20.  The Board therefore came to the conclusion that the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.

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[5].

Grounds for judicial review

22.  The Applicant did not put forward any grounds of application for judicial review in his Form 86. In his supporting affirmation, he said he objected to the Decision of the Board and repeated the gist of his case. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove the factual basis in support of his claim to non-refoulement protection. 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

23.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised by the claims. The Applicant’s claims are founded on his fear of being harmed or killed by his Moneylender. The Board assessed his claim on the basis of the case as he asserted. But even on that basis the Board found he had failed to prove the factual basis to support his alleged fear of harm, ie his feared harm and risk was not well-founded. It was also on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. As the Board assessed his claim on the basis of the case as he asserted, he could not have any complaint against the Board’s finding of fact. It was also on the basis of those facts that the Board found the Applicant had failed to discharge his burden of proving his fears and risks. The Board’s Decision is a finding of fact which 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. Except for the ambiguity in its finding on the Torture Risk ground as mentioned in Paragraph 16, the Decision was utterly without fault. There are no errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

24.  For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

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

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