HCAL 1023/2019
[2023] HKCFI 2610
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1023 of 2019
BETWEEN
Nguyen Thi Hoa
1st Applicant
Do Tuan Anh
2nd Applicant
and
Torture Claims Appeal Board /
Putative
and
Director of Immigration
Putative
Interested Party
Application for Leave to Apply for Judicial Review
Following;
Order by Deputy High Court Judge To :
The application for leave to apply for Judicial Review be refused.
Observations for the Applicants:
Introduction
1. This is the Applicants’ application by Form 86 filed on 15 April 2019 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 10 April 2019 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 3 January 2017 (the “Further Notice”) refusing their application for non-refoulement protection under BOR 2 Risk[1] ground.
2. The Applicants are Vietnamese nationals. The 1st Applicant (now aged 59) is the mother of the 2nd applicant (now aged 21). They entered Hong Kong on 15 August 2015 illegally and surrendered to the authorities on 17 August 2015.
3. On 15 December 2015, the 1st Applicant raised a non-refoulement claim for herself and her son. In due course, their non-refoulement claim was assessed on three applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2] ; BOR 3 Risk[3] ; and Persecution Risk[4] . Their claim was dismissed by the Director by his notice of decision dated 19 August 2016 (the “Notice”). They did not appeal the Notice. The decision and finding of fact in the Notice became final and binding on them.
4. On 7 December 2016, the Director invited the Applicants to submit additional information, if any on or before 21 December 2016, which they considered relevant to their claims on all applicable grounds, specifically including BOR 2 Risk ground. The Applicants did not respond. Then, the Director issued the Further Notice rejecting their claim under BOR 2 Risk ground.
5. The Applicants appealed against the Further Notice. By its Decision, the Board dismissed their appeal on paper. They now seek leave to apply for judicial review of that Decision. The subject matter of the appeal is the Director’s Further Notice dismissing the Applicants’ claim for non-refoulement protection under BOR 2 Risk ground, not his refusal of their claim under the other three grounds.
6. The Applicants had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the Notices, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing. However, having respect to the fact that the 2nd Applicant who was a minor at the time of the application for non-refoulement protection has turned into an adult, the Court scheduled an oral hearing in case he may now have views of his own different from the 1st Applicant’s.
7. Separate notice of hearing had been sent to both Applicants by post to their last known address they provided to Court. Attempts had also been made before the hearing to contact them by telephone to remind them of the hearing; but the 1st Applicant could not be reached. Only the 2nd Applicant appeared at the hearing. According to the 2nd Applicant, who shared the same address with the 1st Applicant, there was some discord between them and the 1st Applicant moved out of the aforesaid address. He had no knowledge of her new address or telephone number. The 2nd Applicant had received the notice of hearing. The notice sent to the 1st Applicant has not been returned through the course of mail. This Court had not been informed by the 1st Applicant of her change of address. There is nothing to suggest the notice had not been effectively delivered to her last known address. In the light of of the 2nd Applicant’s information, it was obviously the 1st Applicant who changed her address without updating the Court. As a matter of law, it is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in a timely manner. If he failed in his duty, he has to bear the consequence of any delay occasioned by the ineffectiveness of such an address: see Karamjit Singh [5] and Re Hasmi Rizwan Imran [6] . Accordingly, the Court proceeded to make a determination of the leave application in the absence of the 1st Applicant.
The Applicants’ case
8. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the two Applicants with legal assistance. In gist, they are in fear of being harmed or killed by a moneylender, Nguyen Thi Thuan (“Thuan”) for being unable to repay the loan borrowed from her and are in fear of the impending legal actions from the Vietnamese Bank for Agriculture and Rural Development (“ARD bank”) in enforcing their debt.
9. The 1st Applicant was born in Hoa Nghia, Kien Thuy District, Hai Phong, Vietnam. She had four years of formal education and had worked as a labourer, food seller, seafood trader, and shrimp breeder. In May 2013, her husband and eldest son borrowed 1,000 million Vietnamese Dong (“VND”) from Thuan for starting a shrimp business. Thuan is a renowned moneylender with triad connections. Under the loan agreement, they had to pay monthly interest of 30 million VND and to repay the loan in full by 2014.
10. Towards the end of 2013, the 1st Applicant’s shrimp business went downhill. At first Thuan gave her husband and eldest son extension of time to pay. To ease their financial difficulties, the 1st Applicant and her husband took out a loan of 500 million VND from ARD Bank on 22 August 2014 using their house as collateral. Since around the end of 2014, Thuan and her men, armed with knives or wooden sticks, visited their home and demanded repayment with threat.
11. Out of fear for Thuan’s threat, the 1st Applicant’s eldest son fled Vietnam and followed by her husband in May 2015. Thinking that Thuan would not harm her, the 1st Applicant stayed behind. However, Thuan continued visiting the 1st Applicant and demanding repayment with threats. The 1st Applicant sought help from the local police, but they refused to help because there was no interest rate stipulated in the loan agreement.
12. During a visit on 10 August 2015, Thuan’s men held the 1st Applicant at knife point and kicked her at the waist. Thuan threatened to take her younger son and two grandsons and sell their organs if she did not pay. This led the 1st Applicant to flee Vietnam with her younger son.
The Director’s finding in the Notice and the Further Notice
13. There is no need to go into details about the basis of the Director’s decision in the Notice as there is no appeal against the Notice which is now final and the subject matter of this application is the Board’s Decision relating to the Director’s decision in the Further Notice. For the purpose of determining this leave application, it suffices to say that the Director dismissed the Applicants’ claim in the Notice essentially because he found:
(1) the ill-treatment did not attain a minimum level of severity (Paragraph 12 of the Notice);
(2) Thuan had no real intention to seriously harm or kill the Applicants and ARD Bank had no intention to take legal action against the 1st Applicant in respect of the loan after actualising the collateral and hence the feared risk of ill-treatment is low (Paragraphs 13 and 38 of the Notice);
(3) the dispute between the Applicants and Thuan is a private dispute (Paragraphs 36 and 42 of the Notice);
(4) the ill-treatment was not inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (Paragraph 42 of the Notice);
(5) the Vietnamese government does not know or have reasonable grounds to believe the Applicants’ claimed feared treatment by Thuan, otherwise it would exercise due diligence to prevent, investigate and punish Thuan (ie adequate state protection is available) (Paragraph 42 of the Notice); and
(6) in any event, internal relocation is feasible (Paragraph 29 of the Notice).
14. In the Further Notice, the Director explained that he took the liberty to further consider whether the Applicants will be subject to BOR 2 Risk in the light of his assessment of their risk under Torture Risk, BOR 3 Risk and Persecution Risk grounds. He gave the Applicant a further opportunity to furnish additional information in support of his claim under all applicable grounds, including the BOR 2 Risk ground. As the Applicant did not furnish any additional information, the Director reached his conclusion on the basis of the materials already before him. He found that the Applicants have failed to establish a personal and real risk of their absolute and non-derogable rights under the Hong Kong bill Rights being violated.
The finding of the Board
15. The Board proceeded on the basis of the Director’s finding in the Notice against which there is no appeal and the absence of additional information from the Applicants.
16. In Paragraph 7 of the Decision, the Board quoted Article 2 of Hong Kong Bill of Rights . It explained the content of Article 2 in Paragraph 8. It recited the relevant legal principles in Paragraph 9, quoting in support the case ARJ v Australia No. 69211996 . Then, it said in Paragraphs 10 and 11:
“10. In the present case, the right protected by BOR 2 has no relevance to the matters complained of by the Petitioners. Neither the evidence originally adduced, nor the new documents[7] showed that they will be at risk of harm from capital punishment inflicted by the government of Vietnam; or face harm from the Vietnam government that would place their lives at risk. This conclusion is based on the following findings of material facts:-
(a) The Petitioner's problem with their loan creditor was a private dispute between them with no Government involvement.
(b) There is no evidence to show that the government has acquiesced in any attempt by their loan creditor to kill the Petitioners.
(c) There was no evidence to show that the Vietnam Government was unwilling or unable to afford protection to the Petitioners.
11. There is nothing in the evidence to show that the Petitioners will be at risk of BOR 2 harm if refouled.”
17. The Board therefore dismissed their appeal.
Legal principles applicable to judicial review
18. 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 [8] .
Grounds for judicial review
19. The Applicants did not advance any grounds for judicial review in the Form 86. In the 1st Applicant’s affirmation filed in support of their leave application, she only reiterated the essence of their claim and emphasised their fear.
20. After explaining the gist of their claim and the above legal principles to the 2nd Applicant, he confirmed that he was a child at the material time and did not remember what had happened. He had no other grounds of application and had no submissions to make.
Discussion and conclusion
21. In the absence of specific grounds of application, the Court in an application for judicial review 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. The essence of the Applicant’s complaint is that they disagreed with the finding of the Board that it is safe for them to return to Vietnam. In effect, they are seeking to challenge the Director’s finding of fact in the Notice and Further Notice that they would not face any real harm or risk if returned to Vietnam. That is both irrelevant for the purpose of this leave application and not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
22. 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 BOR 2 Risk ground; correctly identified the issues and observed a very high standard of fairness.
23. The subject matter of this leave application is the Board’s Decision dismissing the Applicants’ appeal against the Director’s Further Notice rejecting their claim for non-refoulement protection under BOR 2 Risk ground. The Board considered the Applicants’ appeal on the basis of the Director’s finding in the Notice which the Applicants never appealed, despite they had been advised in the Notice to do so and within 14 days if they were aggrieved by the decision. The finding of fact in the Notice is now final and binding on them. The Applicant could not have any valid complaint on the approach of the Board. It was on the basis of those finding of fact and the law that the Board found basically that BOR 2 Risk is not engaged.
24. BOR 2 Risk ground protects a person from arbitrary deprivation of life by his own nation and restricts the circumstances under which a death sentence may be imposed by a nation on its subjects. It is not the Applicants’ case that a death sentence has been imposed on them. In Paragraph 10 of the Decision read in conjunction with the Director’s finding as summarised in Paragraph 13 above, the Board referred to and adopted the Director’s finding of fact that the dispute between the Applicants and Thuan was a private dispute between them with no involvement by the Vietnamese government. Not only that the feared threat or ill-treatment was neither executed by or with the consent or connivance of the Vietnamese government, the Director found that the Vietnamese Government did not know or have reasonable grounds to believe the Applicants were subjected to ill-treatment by Thuan; and had it known about that, it would have taken steps to protect them against the feared ill-treatment and risk. Thus, there is no evidence that the Applicants will be at risk of deprivation of the life by the Vietnamese government and that state protection is available. Hence, the Board upheld the decision of the Director in his Further Notice. These are findings of facts which are exclusively within the province of the Board to make, 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 Decision or procedural unfairness at any stage of the non-refoulement proceedings. 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.
25. For the above reasons, leave to apply for judicial review is refused.
Dated the 10th day of October 2023.
(
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 :
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);
Sent to the ApplicantsNguyen Thi Hoa Do Tuan Anh
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 10/10/2023Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)
Form CALL-1
[1] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance , Cap 383
[2] 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
[3] 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”)
[4] 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
[5] CACV 78/2018
[6] [2018] HKCA 439 at Paragraph 15
[7] The Board was apparently referring to the Notice of Appeal/Petition to the Board, where the Applicants claimed that they could not return to Vietnam as it would be very dangerous to their lives because they would be killed for their family’s unpaid debt. The Board held that there was no “additional facts on their BOR 2 claim”.
[8] [2018] HKCA 524 at [14(1)]