TRUONG MINH HOANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 921/2021

[2022] HKCFI 2412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 921 of 2021

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 by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 13 May 2021 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 July 2020 (the “Notice”).  Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director. 

2.  The Applicant is a Vietnamese national, now aged 25.   He was arrested on 26 February 2020 for having entered Hong Kong illegally.  On 29 March 2020, he raised a non-refoulement claim.

3.  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].  By the Notice dated 23 July 2020, the Director rejected his claims under all four applicable grounds.

4.  He appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 13 May 2021, the Board dismissed his appeal.  On 28 June 2021, he applied for leave to apply for judicial review of that Decision.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

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 or killed by a moneylender (the “Moneylender”) upon his return to Vietnam because of his inability to repay his loan.

6.  The Applicant was born in Bac Giang Province, Vietnam.  He is married and has a young daughter in Vietnam.  He had 11 years of work experience in garment manufacturing in Ho Chi Minh City.  He also claimed to have operated a lychee farm in his home village with his wife between July 2018 and end of 2019.

7.  In July 2018, he borrowed VND 600 million from a woman known as Loan (i.e. the Moneylender) to expand his lychee farm.  Under the loan agreement, he had to pay VND 14 to 15 million per month as interest and to repay the principal by the end of 2019. The lychee farm proved to be unsuccessful and he stopped paying the Moneylender. He believed he owed the Moneylender VND 600 million in principal plus VND 200 million in interest.

8.  The Moneylender visited him on 30 June 2019 alone and demanded repayment.  The Applicant asked for more time to pay and she agreed.  However, in July 2019, the Moneylender sent 3 or 4 gangsters to demand repayment.  When the Applicant said he had no money, they beat him with bare hands for about 30 minutes.  He suffered bruises on his body and took a month to recover.  He did not seek medical attention because he wanted to keep a low profile.

9.  Between July and August 2019, the Moneylender sent gangsters to beat him three or four times.  He suffered mild injuries in each attack.  He decided to flee to Hanoi in August 2019 to avoid the Moneylender.  He changed his phone number and lived peacefully for a while.  However, in mid-December 2019, the Moneylender called him and said that he would not be able to hide from her in Vietnam.  He later learnt that the Moneylender had sent gangsters to his wife and forced her to disclose his new phone number by threatening to harm her and their daughter.

10.  Then the Applicant fled to Mong Cai with the intention to leave Vietnam later.  He learnt from a friend in Hong Kong that he could seek help in Hong Kong.  He sneaked into Mainland China and then into Hong Kong illegally. 

11.  He claimed that he would not receive any state protection in Vietnam because the Moneylender had connections with the government and the Vietnamese police was corrupt and would side with the rich and powerful.

The finding of the Board

12.  The Applicant testified before the Board.  The Board found his evidence inconsistent with his evidence in the NCF in material respects and rejected the centrepiece of his case. 

13.  First, the Applicant’s account of his purpose of taking out the loan was inconsistent and unconvincing.  He gave different accounts about the time he started the lychee farm.  In his NCF, he said he commenced his fruit plantation business in 2018 after having farmed with his family since 2010.  But his oral evidence before the Board was that he worked with his wife on his hillside plantation since 2016 and borrowed the loan to expand his plantation.  His oral evidence also suggested that he did not have experience managing a lychee farm or running a business of that kind.  Further, according to his oral evidence he only need around VND 120 million to buy lychee trees and a modest sum for other equipment which did not call for a large loan of VND 600 million. 

14.  Second, the Applicant’s account of the terms of the loan and calculation of the monies outstanding given before the Board was inconsistent with his evidence in his NCF.   At the hearing, he told the Board that he paid VND 30 million monthly to settle the monthly interest of around VND 14 million and partial payment of the principal.  This was inconsistent with his evidence in the NCF that he paid monthly interest of VND 14 to 15 million and never repaid any principal.  The Board also found his explanation about this inconsistency incredible.

15.  Third, the Board found his action upon default had undermined his claims to genuine fear of imminent harm from the Moneylender.  If he were genuinely in fear of the Moneylender, he would have taken steps to pay her back (such as by selling his house) but he did not. 

16.  Fourth, the Applicant told the Board that his left arm was broken during one of the attacks.  But, in his NCF, he only claimed to have suffered mild injuries and made no mention of a broken arm.  He explained that his arm might not have been broken but he felt enormous pain from it.  The Board also found his evidence about the injury he suffered inconsistent and incredible.

17.  The Board accepted that the Applicant might have worked in a lychee farm but found his claims about having taken out a loan from the Moneylender to commence or expand his lychee farm with his wife a fabrication.  Accordingly, the Board found he had failed to prove the factual basis to support his claim for non-refoulement protection.  While it is not necessary for him to have suffered severe injuries in the past in order to show that he would face risk of harm in the future, the Board found on the basis his own evidence it was unlikely that he would be subjected to harm that could meet the minimum level of severity upon his return of Vietnam[5].

18.  Further, on the basis of authoritative and credible Country of Origin Information, the Board rejected the Applicant’s argument that state protection is not available because of corruption.  It found notwithstanding “an appreciable level of corruption within the Vietnamese police forces”, state protection of an adequate standard is available to prevent or negate the risk and harm from the Moneylender.  It was satisfied that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens.  Hence, the Board held that even if the risks were real, he could nonetheless mitigate the risks by seeking state protection.

19.  For the above reasons, the Board rejected the Applicant’s claims based on all applicable grounds under the USM and affirmed the Director’s decision in the Notice. 

Legal principles applicable to judicial review

20.  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[6].

Grounds for judicial review

21.  The Applicant did not state any grounds for judicial review in the Form 86.  In his supporting affirmation, he said that he did not agree with the decision of the Director in the Notice and the Decision of the Board.  He reiterated that he could not return to Vietnam because his life would be in danger if he returns.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk of harm if returned to Vietnam.  For reasons as explained above, that is a finding of fact solely for the Board which the court in a judicial review will not interfere unless the finding involved errors of law, procedural unfairness or irrationality. In the absence of specific or proper grounds of application, 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.  

Conclusion

22.  In response to the Applicant’s letter in Chinese dated 25 May 2022 enquiring about the progress of his application for leave to apply for judicial review, he was advised by the Court’s letter dated 24 June 2021 that his application will be determined on paper and he was invited to file submissions in support of his application, if he considered necessary.  As at the date of this Form Call-1, he has not respond.  There was nothing to suggest he has moved or has not received the letter.

23.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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 rejected the centrepiece of the Applicants’ claim that he was in genuine fear that he will be harmed or killed by his Moneylender because of his inability to repay the loan he borrowed. It was on that basis that the Board found he had failed to prove the factual basis to support of his claim for 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 Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

24.  For the above reasons, leave to apply for judicial review was 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

[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] Paragraphs 96 to 97 of the Board’s Decision

[6] [2018] HKCA 524 at para 14(1)