BUI THI MAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review be granted

Observations for the Applicant:

1.  By a Form 86 filed on 16 September 2021 (“Form 86”), the Applicant applies for leave to commence judicial review proceedings against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 31 August 2021.  The Director of Immigration (“DI”), who made a first tier decision on the Applicant’s non‑refoulement claim on 7 September 2020, has been named a putative interested party.  

2.  The Applicant does not require an oral hearing for this leave application; I dispose of this application by consideration of documents only.

3.  The Applicant is a Vietnamese national.  Her non-refoulement claim was based on an alleged risk of being harmed or killed by a moneylender (a female) with triad background and her subordinates.  The Applicant alleged that she had been ill-treated and subject to sexual violence before she left Vietnam.

4.  Having held an oral hearing for the Applicant to make representations and answer questions, the Board assessed the Applicant’s claim as incredible.  The Board held that the Applicant had not borrowed from the alleged moneylender and did not suffer the ill-treatments alleged.  There was thus no factual basis on which the Board could accept the Applicant to be subject to any real or substantial risk under any applicable ground.   

5.  The Board proceeded to consider the claim on an alternative basis, i.e., even assuming the Applicant’s account to be truthful, whether she would be subject to any real or substantial risk of ill-treatment contravening her rights under the applicable grounds.  In this regard, the Board found that State protection and reasonable internal relocation alternative would be available to the Applicant should she return to Vietnam.  The Applicant’s appeal/petition against the DI’s tier-1 decision was thus dismissed.

6.  Having vigorously and anxiously reviewed the Board’s reasoning, I am satisfied that there are reasonable arguments against the rationality of the Board’s credibility finding.  In terms of the Board’s alternative analysis assuming the Applicant’s account to be truthful, the Board erred in failing to have proper regard to the Applicant’s assumed status as a victim of sexual violence when assessing the availabilities of State protection and reasonable internal relocation alternative.   

7.  In relation to credibility finding, this Court appreciates that the Board was entitled to compare the Applicant’s respective answers given in the DI’s screening interview and the Board’s hearing; this Court also appreciates that some of the Applicant’s assertions were either lacking in particulars (e.g. whether any of the persons threatening/attacking her on different occasions were the same persons) or carrying some sense of implausibility (e.g. those relating to how she escaped from the detention by the moneylender’s subordinates).  In other words, part of the analyses of the Board did not contain any error in public law sense.  However, I have found some other parts of the core reasoning of the Board’s credibility analyses to be based on conjecture and unfounded assumptions.  To name a few:

(a)   According to the Applicant, the moneylender first refused to extend time of repayment of an instalment in late August 2018.  Subsequently in early September 2018, the moneylender’s subordinates attended the Applicant’s residence but did not harm her on that occasion. At paragraph 45 of the Board’s decision, the Board said the Applicant’s assertions in this regard were unreasonable, incredible and impossible.  The Board, apparently based on its own conjecture and assumption, considered that these subordinates should have at least beat the Applicant up during the latter occasion to give her some warning, and the lack of which was an indication that the Applicant’s story was fabricated; and

(b)   At paragraphs 46-50 of the Board’s decision, the Applicant was recorded for stating that she met the moneylender and her subordinates again on another day in September 2018, during which one of the subordinates took out a cutter but did not take any action to physically hurt the Applicant.  The Board said no moneylender would have such patience, and it was inherently improbable that the subordinate did not use the cutter to hurt the Applicant.  Again, the Board said the cutter’s not being used showed that the Applicant had fabricated her story – the Board said she did not think about whether different aspects of her story was probable.   

In my judgment, the above thinking processes are arguably so unreasonable to the extent of being Wednesbury unreasonable.  Similar problems are also seen at, e.g., paragraphs 101, 106 and 107 of the decision.

8.  Speculation occurs when a decision-maker reaches subjective conclusions without relying on supporting evidence; adverse credibility findings should not be based on unfounded assumptions, subjective speculation, conjecture, stereotyping, intuition or gut feelings: see UNHCR’s Beyond Proof: Credibility Assessment in EU Asylum Systems, May 2013 at p.41.

9.  In United Kingdom Home Office’s Asylum Policy Instruction: Assessing Credibility and Refugee Status, 6 January 2015 at s 5.6.4, it was said caseworkers must not base implausibility findings on their own assumptions, conjecture or speculative ideas of what ought to have happened, what they might think “someone genuinely fleeing for their life” should have done, what ought to have been possible or not possible or how they think a third party would have acted in the circumstances.  See also ST v Betty Kwan [2014] 4 HKLRD 277 at §43.

10.  Although the Board did analyse the alternative position that the Applicant’s claims were true, the relevant analyses on State protection and internal relocation alternative were clouded by the lack of appreciation that the Applicant should be assumed to be a victim of sexual violence under this alternative analysis:

(a)   In terms of State protection, the Board only assessed country information in relation to the Vietnamese Police in general, but did not draw its mind to whether it was effective in combating trafficking in person (which was part of the Applicant’s claims) and affording protection to victims of sexual violence; and

(b)   In terms of internal relocation, I do not find it suitable to recount the detailed reasoning of the Board in this decision given its sensitive nature (particularly paragraph 139 of the Board’s decision).  It is sufficient to say the relevant analysis in this case, arguably, should not be just whether the Applicant was able-bodied and might be able to make a living in another part of Vietnam.  Instead, the Applicant’s personal characteristic of having been subjected to sexual violence (as her assertions were assumed to be true at this level of the analysis) should be taken into account specifically.  The Board did not have any country information as to how victims of human trafficking and sexual violence find support of living in a part of Vietnam away from the claimant’s own home area.

11.  It is reasonably arguable that the Board’s decision should be quashed for a differently constituted Board to re‑consider the Applicant’s claim.  Leave to apply for judicial review is granted.  The Applicant shall pay heed to the “Notes for the Applicant” below and follow the necessary procedure in order to pursue the application for judicial review.

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