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HCAL 1158/2022
[2024] HKCFI 934
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1158 of 2022
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BETWEEN
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Hoang Gia Hieu |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 27 October 2022 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 5 October 2022 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 31 December 2021 (the “Notice”).
2. The Applicant is a Vietnamese national. He entered Hong Kong on 12 February 2021 illegally and was arrested on 26 April 2021. On 17 May 2021, he raised a non-refoulement claim. In due course, his non-refoulement claim was 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]. His claim was dismissed 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.
3. On 21 August 2023, the Applicant filed an affirmation to withdraw his leave application (the “withdrawal application”). This Court approved his application on 24 August 2023. On 14 December 2023, he filed another affirmation seeking to re-open his leave application on the ground that his withdrawal application was procured as a result of fraud and duress on his family. On 27 December 2023, this Court accepted his assertion on its face value, allowed his application to re-open his leave application and scheduled a hearing of his leave application on 19 February 2024.
The Applicant’s case
4. 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 claims that he would be harmed by a moneylender (the “moneylender”) upon his return because of his inability to repay his debt.
5. The Applicant, now aged 33, was born in Dai Hop Kien Thuy Hai Phong, Vietnam. He received fourteen years of education and has nineteen years of working experience as a factory worker and a driver.
6. He borrowed one billion Vietnamese Dong (“VND”) from the moneylender to start his business selling electrical appliances between early and mid 2020. Under the loan agreement, there was no fixed term for the repayment of the principal and the Applicant only had to pay a monthly interest of VND 20 million.
7. With the loan, he built and operated a shop adjacent to his house. The business went well initially. But in August 2020, a fire broke out which destroyed his shop and all his merchandise. The Applicant was unable to pay monthly interest to the moneylender. At the beginning, the moneylender gave him extensions of time to pay, but in early October, the moneylender and his associates attacked him. The moneylender removed the fingernail on his left little finger.
8. The Applicant received stitches. It took him two months to heal. He made a report to the local public security bureau in Dai Hop but the officer refused to file a report, saying that there was no evidence of any attack and that the injury he suffered could have been caused by an accident with a machine. The Applicant suspected the officer was friendly with the moneylender or might even have accepted a bribe from the moneylender for refusing to file a report.
9. The moneylender made five more visits to the Applicant’s home between December 2020 and January 2021. Neither he nor his family was physically harmed in those visits. Towards the end of January 2021, the moneylender visited his home again. This time he damaged the Applicant’s television set and his motorcycle. Feeling it was too dangerous to remain in Vietnam, the Applicant fled to Mainland China on 10 February 2021.
10. He does not believe the Vietnamese police would help him because the public security bureau would not take any action without a bribe and he had no money to pay bribes. He also did not believe internal relocation would be feasible because it would be difficult for him to secure a job outside of his hometown.
The finding of the Board
11. The Board found that the Applicant fabricated his claim and dismissed his evidence in its entirety. The Board considered it inherently improbable that the moneylender would have lent such a huge sum of money to the Applicant, who had no relevant business background and whose previous monthly income was only VND 7 million.
12. The Applicant claimed that the fire which burned down his shop lasted for eight hours and that during the first six hours, the police and his neighbours tried to put out the fire on their own without calling the fire services department. The Board considered the Applicant’s story shop inherently implausible.
13. The Applicant gave a new story about his injuries before the Board. He claimed that a portion of his finger (as opposed to just the fingernail) had been cut off by the moneylender and that he waited about one and half hours at home before going to a nearby hospital for treatment. He claimed that was because he had to wait for the police so that he could give a statement to them. The Board found this story unconvincing.
14. The Board noted other inconsistencies in his evidence; some of the most egregious one are summarised below. At the hearing before the Board, the Applicant sometimes referred to the moneylender as Hoang Van Quy but he also confirmed that the surname of the moneylender was Tran not Hoang. The Board found the interest rate of 24% per annum allegedly charged by the moneylender was much lower than the usual rate of 180% to 300% per annum charged by moneylenders in Vietnam according to the COI. The Applicant testified before the Board that he only had one encounter with the moneylender during which he was ill-treated, that was the incident when his finger was injured. But he made no mention about the incident when his television and motorcycle were damaged by the moneylender.
15. The Board also noted that the Applicant was unable to provide any details to substantiate his claim about having operated a business selling electrical appliances. He was unable to answer the Board’s questions about how much he paid his employee, why he need to borrow VND 1 billion to start the business and not a lesser amount, how he was able to run a business worth VND 1 billion without a bank account or the applicable value added tax (VAT).
16. The Board held that his failure to seek protection in Mainland China before coming to Hong Kong or immediately after arriving in Hong Kong damaged his credibility.
17. Having dismissed his only factual basis for claiming protection, namely the alleged threats from the moneylender, the Board found that the Applicant had failed to establish that he would be subject to any of the proscribed risks of harm upon his return to Vietnam.
18. However, the Board went further and assessed the Applicant’s claim on the assumption that what he asserted were true. It found on his evidence that the alleged past ill-treatments did not attain the minimum level of severity and there was nothing to suggest that the perceived risks of harm would attain the necessary threshold as to entitle him to protection under BOR 2 and BOR 3 Risk grounds. The Board found his dispute with the moneylender was a private monetary dispute; that the use of force on him were not acts instigated, acquiesced, sponsored or condoned by the state; and that the risk of harm he would suffer had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found 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. Hence, it dismissed the Applicant’s appeal against the Director’s Notice.
Legal principles applicable to judicial review
19. 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[5].
Grounds for judicial review
20. At the hearing, after the above legal principle had been explained to him, the Applicant repeatedly confirmed that he had no complaint about errors of law, procedural unfairness or irrationality in the Decision. His reiterated that his ground of application is that he will be harmed or killed by the moneylender on his return to Vietnam for being unable to repay his loan (the “first ground”).
21. In his Form 86, the Applicant reiterated his fears of harm from the moneylender and challenged the Board’s finding about availability of internal relocation on the grounds that his health is not good, that he may be disadvantaged in the labour market and there is no guarantee he could adapt to the new location (the “second ground”). He also alleged that with the clandestine connection between the moneylender and corrupt elements in the government and police apparatus, it is possible for the moneylender to locate him and harm him anywhere in Vietnam (the “third ground”).
Discussion
22. The Applicant’s first ground of review that he will be killed by the moneylender is the basis of his claim for non-refoulement protection. Whether his risk and harm is proven is a question of fact for the Board and could not be a proper ground for review, though whether that finding was made as a result of error of law, procedural unfairness or irrationality could be. This ground is, in effect, a direct challenge of the Board’s finding of fact that the Applicant’s life will not be at any proscribed risk of harm on his return to Vietnam, which is not permissible. On the Board’s primary finding, the Applicant was incredible and had failed to prove the factual basis on which his claim for protection was founded. Hence, he had failed to prove the existence of the debt, his obligation to repay and risk of harm from the moneylender. This is a finding of fact which the Court in a judicial review will not interfere.
23. On the Board’s alternative finding, assuming that he was indeed unable to repay the debt he owed to the moneylender, the Applicant was not entitled as a matter of law to protection under any of the applicable grounds under the USM for reasons as explained in paragraph 18 above. In other words, even if the risk is real, it is not a proscribed risk in respect of which the Applicant is entitled to protection by the international community. This is a mixed finding of fact and of the law. Insofar as it involves finding of fact, the finding is exclusively within the province of the Board, which the Court on a judicial review will not interfere. Insofar as it is finding of the law and application of the law to the fact found, it is absolutely correct. There is no substance in this ground of application.
24. By his second and third grounds, the Applicant seeks to challenge the Board’s finding on internal relocation. Internal relocation is a further alternative basis of the Board’s decision in above alternative finding. It is unnecessary for the Board’s Decision because as a matter of law the Applicant is not entitled to protection. Hong Kong has no obligation to give him non-refoulement protection. Internal relocation was only considered as a matter of caution[6].
25. Both the Director and the Board had explored the issue of internal relocation with the Applicant[7]. In TK v Jenkins[8], the Court of Appeal held that it is for the Director to raise the issue of internal relocation and for the claimant to deal with the issue so raised. The burden of proof is on the claimant. The issue of internal relocation had been raised by the Director[9]. The Director referred to relevant COI and identified Ho Chi Ming City and Da Nang City as possible relocation alternatives. The immigration officer had discussed these alternatives with the Applicant during the screening interview. The Applicant’s response was a bare assertion that he had no money to relocate, had difficulties in finding employment, he would be a stranger in those locations and the moneylender would be able to find him out. In reaching his decision in the Notice, the Director referred to the Applicant’s educational background, his work experience and his ability to live in Hong Kong away from his family in Vietnam. Both the Director and the Board rejected the Applicant’s arguments. Other than making bald assertions, the Applicant offered no credible explanation why he could not so relocate or offer at least some evidence other than his speculation that the moneylender could locate him anywhere in Vietnam. The Applicant had failed to discharge his burden of proof. Hence, the Board found, given his age, education background and experience, it would not be unreasonable or unduly harsh for him to relocate. This is also a finding of fact.
26. By his second ground, the Applicant asserted that the moneylender could locate him through his clandestine connection with corrupt elements in the government. This ground had been rejected by the Board as speculative and unsupported by any evidence. This is also a finding of fact.
27. In his third ground the Applicant asserted that his health is not good, he will suffer disadvantage in the labour market, will be unable to adapt to the new location and to find employment. This is a new assertion. He had never advanced such argument before the immigration officer or the Board. It is wholly lacking in particulars about his health problem, not to mention that his assertion is unsupported by any credible or medical evidence. It is accepted that one will face certain difficulties or disadvantages in relocating. Such usual difficulties or disadvantages are not bars to internal relocation. The test is not whether it would be difficult to relocate, but whether it is unreasonable to expect one to relocate or whether it would be unduly harsh for a person to relocate in the circumstances. By his bald assertion of ill-health, the Applicant has fallen far short of showing it is. There is no substance in this ground of application.
28. Having rigorously examined the Decision, the Notice, 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 grounds of application revolve around the Board’s finding of fact. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
29. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 28th day of March 2024.
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( Allen LEE )
for Registrar, High Court
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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:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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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);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 28/3/2024
Hoang Gia Hieu
Applicant’s ref. no:
Nil. |
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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 28/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19677
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2168/21 (Formerly RBCZ 10971/21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] [2018] HKCA 524 at [14(1)]
[6] Paragraph 153 of the Decision
[7] Paragraph 153-162 and Paragraphs 6.20, 6.21, 17 and 18 of the Notice
[8] CACV 286/2011
[9] Paragraphs 6.20, 6.21, 17 and 18 of the Notice
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