TRAN VAN XUAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2257/2018 and HCAL 3708/2019

[2023] HKCFI 2848

Heard together

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2257 of 2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3708 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
	onsideration of the documents and oral submissions by the Applicants in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  There are two applications for leave to apply for judicial review (“leave application(s)”) ordered to be heard together.

2.  In HCAL 2257/2018, the 1^st and 2^nd Applicants who are husband and wife (respectively, the “husband” and “wife”, collectively the “couple”) apply for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 15 October 2018 (“Decision (A)”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 November 2016 (“Notice (A)”). Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director.

3.  In HCAL 3708/2019, the daughter of the couple (the “daughter”) seeks leave to apply for judicial review of the decision of the Board dated 9 December 2019 (“Decision (B)”) dismissing her appeal against the decision of the Director dated 29 June 2018 (“Notice (B)”) rejecting her non-refoulement claim. She is represented by her father, ie the 1^st Applicant in HCAL 2257/2018.

4.  The Applicants are Vietnamese nationals from the same family. The couple entered Hong Kong on 9 December 2013 illegally and surrendered to the authorities on 17 December 2013. On 18 March 2014, they raised a non-refoulement claim. The daughter and her brother entered Hong Kong together illegally on 16 December 2013 and surrendered to the authorities. The daughter lodged her claim for protection by way of written submission dated 18 March 2014. Her brother voluntarily returned to Vietnam in May 2017.

5.  In due course, their non-refoulement claims were 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]. Their claims were rejected by the Director’s Notice (A) and Notice (B). Their appeals were dismissed by the Board’s Decision (A) and Decision (B) respectively. They now seek leave to apply for judicial review of Decision (A) and Decision (B).

The Applicants’ case

6.  The Applicants’ case is rested on the same grounds. The following account of their case is mainly based on the information in the non-refoulement claim forms (“NCFs”) prepared by them with legal assistance and the record of their screening interviews in the presence of their lawyer. In gist, they claimed that they would be harmed or killed by a moneylender (the “Moneylender”) upon their return to Vietnam for the husband’s and wife’s inability to repay their loan owed to the Moneylender.

7.  The husband and wife are respectively aged 58 and 60 and had received secondary school education. They have four children. The daughter is now aged 35. She is mentally retarded as she is diagnosed with hypothyroidism.

8.  The couple operated a shipping company in Haiphong in 2006 and leased a ship from the Vietnamese government. In around 2007, they wanted to expand their business. They used their saving of 10 billion Vietnamese Dong (“VND”) and a loan for VND 14.5 billion from two banks to build a new ship, named “強達26”. In mid-2008, due to shortage of funds, they borrowed VND 4.54 billion and US$10,000 from the Moneylender at a monthly interest of VND 400 million. The Moneylender was said to be a triad member and was well-connected with triads and with the Vietnamese government.

9.  The couple paid their debts owed to the banks and Moneylender between 2007 and 2012. On 27 May 2013, 強達26 was sunk because of an incident at sea. The couple claimed that the incident was caused by the Vietnamese police who tied up the ship captain when their demand for bribe was not met. Since then, the couple was unable to pay their debts. The banks took possession of their house and the couple was unable to repay the loan owed to the Moneylender.

10.  On 30 May 2013, the Moneylender and four or five of his men attacked the couple’s son while he was in his school. They broke his left wrist with an iron rod. The husband’s paternal aunt took the daughter to Thailand for 23 days to avoid the Moneylender. One day after the daughter’s return, she was assaulted by four to five of the Moneylender’s men. The assault stopped when the neighbours told the men that she was retarded. She sustained minor injuries.

11.  In June 2013, the Moneylender together with four or five of his men went to the couple’s home to demand repayment. They were armed with sabers and swords. They punched and kicked the couple. They threatened to kill the husband and cut off the hand and ear of the wife. The wife took three months to recover. The couple suffered four similar attacks. Out of fear, the couple and their children fled to different parts of Vietnam to stay with their relatives and friends.

12.  Having lost track of the couple, the Moneylender and his men went to the home of the husband’s mother and threatened her with a knife. They damaged her furniture. They left when she said she did not know the whereabouts of the couple.

13.  The couple fled to Hong Kong on 7 December 2013 after leaving their children to the care of their maternal grandmother. While in Hong Kong, they learnt that the Moneylender had been to their home and threatened their children and threatened to kill the couple upon their return.

14.  The couple did not believe the Vietnamese police would help them. The Vietnamese police had asked for bribes while on board their ship. Even though the couple had made reports to the Vietnamese authorities, the authorities refused to investigate the cause of the sinking of their ship and refused to help them. The couple did not believe internal relocation feasible as the Moneylender could locate them through their wide network in Vietnam.

The finding of the Board

15.  Decision (A) and Decision (B), collectively the Decisions, were made by the Board constituted of same member. The Applicants’ claims rested on the same basis and the same evidence. The Board assessed their claims on the basis of the case as they asserted and made similar finding. It found as a matter of law and fact that the Applicants were not entitled to protection under any of the four applicable grounds under the USM.

16.  The Board found that despite the Moneylender and his men had the opportunity and capability to cause the couple serious bodily harm or kill them, they never did. Based on the injuries they inflicted on the Applicants, the Board found that the evidence did not demonstrate a manifest intention on the part of the Moneylender to seriously harm the couple in the past or in the future. It found the actions taken by the Moneylender were only designed to coerce the couple into making repayment and not to cause them serious bodily harm. It also found that the past threats and assaults did not attain a minimum level of severity.

17.  It further found the Moneylender and his men were non-state actors. There is no evidence that their use of force on the couple was instigated or condoned by the state. Although the Vietnamese police refused to register their complaint against the Moneylender, that only showed that an individual officer had failed to perform his duty. That did not reflect the attitude of the Vietnamese police as a whole.

18.  On the basis of authoritative and credible country of origin information, the Board found that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens. It was satisfied that state protection of an adequate standard is available to prevent or negate the risk and harm from the Moneylender.

19.  As the Moneylender could not locate the couple and their children after they moved to Ho Chi Minh City, Tỉnh Quảng Ninh or Mong Cai, the Board rejected the Applicants’ assertion that the Moneylender was so well-connected that he could locate them anywhere in Vietnam. The Board held that as able-bodied adults with business experience, the couple can safely relocate to other parts of Vietnam to minimise the risk of harm from the Moneylender.

20.  It also rejected the couple’s claim that their inability to repay their debt to a national military bank in Vietnam would result in death penalty as a mere speculation not supported by evidence. Further, if the couple had to face legal consequences of their inability to repay their debt, it would be a legal sanction and not torture. Hence, their inability to repay their debt to the bank could not be relied on as a ground for seeking protection.

21.  As for Persecution Risk, the Board found that there was no evidence of any involvement by state agent and that the Applicants’ risk of harm from the Moneylender did not arise out of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely race, religion, nationality, membership of a particular social group or political opinion. For the above reasons, the Board dismissed their appeal.

Legal principles applicable to judicial review

22.  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 feasibility 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

23.  The Applicants did not advance any grounds for judicial review in their Form 86. In their supporting affirmations, they only repeated the gist of their claim and their son’s complaint about him being hunted by the Moneylender and his men. They also enclosed a copy of their son’s letter advising them not to return to Vietnam or they would be killed.

24.  After the above legal principle has been explained to them, the husband complained about procedural unfairness in that the Applicants did not have time to prepare for the hearing before the Board. He complained that the Applicants were not provided with language assistance in understanding the documents in the hearing bundle and that the hearing bundle was not served on them until seven to ten days before the hearing of the appeal.

25.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[6], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicants’ choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, they have to live with or cope with their language disability. They cannot expect to have the luxury of having any documents fully translated into their first language for their benefit as and when they desire. They have to find assistance themselves from among their friends and their ethnic community. The question is whether anything went amiss because of lack of language assistance.

26.  The hearing bundle is basically made up of the Applicants’ NCFs, the record of the screening interviews, the Director’s Notices, the notices of appeal/petition (“NOAs”) and the COI. The Applicants know what is contained in the NCFs which were filled in by them with the assistance of an interpreter and the Duty Lawyer Service. They know what is contained in the record of screening interview which they attended also with the assistance of interpreter and legal representation. The record had been read back to them in Vietnamese and they signed to acknowledge that they understood and agreed with its contents and that no amendment was necessary. The NOAs were prepared by themselves. Recognizing the limitation in their foreign language ability and the importance of the claim, they ought to have taken notes, at least very brief ones, to remind them of what they had said or written rather than relying on the host country to provide them the convenience of interpretation at their fingertips. The Notices and COI are in English and unfortunately have not been translated. Under the prevailing arrangement, the Notices must have been explained to the Applicants by the Duty Lawyer Service when the Notices were served on them. As for the COI, the Applicants must have been advised about its content by the Duty Lawyer Service in the course of their legal consultation before or during the screening interview. If they wish to seek further reliance on the COI, they have to find assistance themselves from among their friends and their ethnic community. They should not do nothing and expect the host country to translate the documents to them as and when they require. Nothing went amiss for want of interpretation service.

27.  Though the hearing bundle was not served on the Applicants until about seven to ten days before the hearing, Notice (A) and Notice (B) were issued on 3 November 2016 and 29 June 2018, respectively. Time for preparation of the appeal should start to count from the date of issue or receipt of the Notices and not from the date of service of the hearing bundles. The oral hearing in respect of the appeal against Notice (A) was held on 13 August 2018. In between, the couple had twenty-one and half months to find out what Notice (A) is about, if they were at all serious in pursuing their non-refoulement claim. The oral hearing in respect of the appeal against Notice (B) was held on 12 September 2019. In between, the father had fourteen and half months to find out what Notice (B) is about. The Applicants had no employment in Hong Kong and had nothing else to do than to prosecute the appeal. In the circumstances, a period of 7 to 10 days since receipt of the hearing bundles is not an unreasonable period for them to prepare for their appeals.

28.  The couple also complained about irrationality. The essence of their complaint is that they disagree with the finding of the Board that it is safe for them to return to their home country. They also sought to rely on their health problems. The husband said he is suffering from cancer while the wife is suffering from a spine problem which developed as a result of the assault by the Moneylender’s men. They also claimed their daughter is retarded and cannot survive in Vietnam by herself. All these health issues are not, as such, relevant in the non-refoulement context.

Conclusion

29.  The Board assessed the Applicants’ claim on the basis of the case as they asserted and its finding of availability of state protection and feasibility of internal relocation. On the basis of these finding of facts, the Board found the Applicants are not entitled as a matter of law to non-refoulement protection under any of the four applicable grounds. In effect, the Applicants are seeking to challenge the Board’s finding of fact and of law that they would not face any real harm or risk of harm if returned to Vietnam. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

30.  Having rigorously examined the Decisions, 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 under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicants’ claim on the basis of the case as they asserted. They could not have any complaint on this finding of fact. On the basis of authoritative and credible country of origin information, the Board is also satisfied that state protection is available and internal relocation feasible to prevent or avoid the risk and harm if these turn out to be real. It was on that basis that the Board found that the Applicants had failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which 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. The Court could not detect any error of law in the Decisions or procedural unfairness at any stage of the non-refoulement proceedings. The Decisions do satisfy the enhanced Wednesbury test. They are not Wednesbury unreasonable or irrational. The Decisions are utterly without fault. The proposed judicial review has no realistic prospect of success.

31.  For the above reasons, 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

Form CALL-1