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HCAL 1618/2019
[2024] HKCFI 307
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1618 of 2019
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BETWEEN
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Dao Thi Ha |
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 refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 13 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 29 April 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 August 2017 (the “Notice”).
2. The Applicant is a Vietnamese national. She entered Hong Kong illegally on 2 January 2016. Upon her arrested on 10 August 2016, she raised a non-refoulement claim. In due course, her 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]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed by a moneylender (the “Moneylender”) upon her return to Vietnam because of her inability to repay her loan owed to the Moneylender.
4. The Applicant, now aged 58, was born in Hai Phong City, Vietnam. She and her ex-husband were farmers. Their relationship turned sour after their son was born. They separated in 2005. The Applicant had to support her family alone.
5. In early 2010, the Applicant wanted to improve her family’s living standards by starting a business selling building materials. She borrowed 300 million Vietnamese Dong (“VND”) from the Moneylender in around February 2010, at an interest rate of VND 30 million per month, with repayment of the principal due in 2015.
6. She rented a shop and hired a worker and an accountant. Initially, she made a modest profit of VND 1.5 million a month, net of expenses and interest payments. However, the business faltered in mid-2013 and she was unable to pay interest since then. The Moneylender visited her shop in mid-2013 to demand repayment and threatened to send gangsters to assault her, if she could not pay.
7. She closed her business in 2015. The principal of the loan became due in mid-2015. The Moneylender visited her home with six of his associates and demanded VND 600 million as repayment of the principal and arrears of interests. They threatened to kill her unless she paid. After this incident, the Moneylender visited her home twice and made similar threats.
8. Towards the end of 2015, the Moneylender and six of his associates armed with choppers and staves arrived at the Applicant’s home. The Moneylender told her to put a chopper on her neck and threatened to cut off her head if she did not pay. She begged for more time and the Moneylender agreed.
9. Then the Applicant hid in her friend’s home in the same village. As she knew she could never repay, she sneaked out of Vietnam and sneaked into Hong Kong to seek protection. She had never received any injury at the hand of the Moneylender.
10. Since her arrival, she maintains sporadic contact with her brother who told her in May 2017 that the Moneylender continued to search for her in Vietnam. Her mother, who was living in the same village as hers, told her the same. The Applicant also claimed that her ex-husband had sold their family house in October 2016 and absconded with the proceeds.
11. The Applicant claims that internal relocation is not viable because the Moneylender had triad connections through which he could locate her. She did not seek help from the police because she doubted if they would or be able to protect her.
The finding of the Board
12. The Board found the Applicant to be an incredible and unreliable witness. It noted that the alleged loan was not supported by any document and it was unreasonable for her to venture into construction materials trading without any previous experience when she was living comfortably by farming.
13. The Board also noted serious discrepancies between her testimony before the Board and her case before the Director. She told the Board that she took out the loan in mid-2011 and stopped paying interest since July 2014. But she told the Director that the loan was taken out about a year earlier in February 2010 and that she stopped paying interest in mid-2013. She told the Board that she had made a report to the Public Security Bureau by telephone about the Moneylender’s threat made during his last visit at her home, but she made no mention of this incident to the Director. Her explanation for the discrepancy was that she had not been asked about such reporting by the Director. The Board did not accept her explanation. It rejected her evidence and found she had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Vietnam.
14. The Board went further and assessed her claim on the basis of the case as she asserted. It found Applicant’s dispute with the Moneylender was a private monetary dispute; the Moneylender and his men were non-state actors; and their ill-treatment on the Applicant was not an act instigated, acquiesced, sponsored or condoned by the state. Hence, her claim under Torture Risk ground failed.
15. As for BOR 3 Risk ground, the Board the Applicant never suffered any injury at the hands of the Moneylender and there was nothing to suggest that she would face any risk of serious harm from him in the future. Further, on the basis of authoritative and credible country of origin information, the Board found that state protection of an adequate standard is available to prevent or negate the risk and harm. It also found internal relocation to Ho Chi Minh City, Hanoi or Hai Phong was viable because it was unrealistic to speculate that a local loan shark such as the Moneylender would have the ability and resources to locate her in other parts of the country. The Board’s Decision is to some degree premised on an erroneous assumption that the Applicant departed the country through lawful channel showing that she was not of adverse interest to the Vietnamese government. As the Applicant’s claim under this ground must fail unless all the above issues are resolved in her favour, this error is not fatal.
16. Her claim under Persecution Risk ground failed as her dispute with the Moneylender was purely private in nature and her risk was not on account of race, religion, nationality, membership of a particular social group or political opinion protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
17. As for BOR2 Risk, the Board found that there was no risk to her life because it was in the interest of the Moneylender to keep her alive so that she can pay back the loan. In any event, state protection is available and internal relocation was viable to negate or avoid the risk of harm.
The legal principles applicable to judicial review
18. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
19. The Applicant did not put forward any grounds in her Form 86 or her supporting affirmation. In response to the Court’s invitation by letter to file submissions, she replied by letter dated 4 November 2023 essentially repeating her case. At the hearing, after the legal principles in the preceding section had been explained to her, the Applicant confirmed that she had no complaint about errors of law, procedural unfairness or irrationality. She only asked to be allowed to stay in Hong Kong for a few more years. In essence she is seeking to challenge the Board’s finding of fact that she will not face any real harm or risk of harm on her return to her home country, which is not permissible in an application for judicial review. In the absence of specific 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.
Discussion
20. Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application 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 and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues involved in the claims.
21. The Applicant’s claims is founded on her fear of harm by the Moneylender. The Decision of the Board was based on its finding of the Applicant’s credibility and assessment of her risk of harm. The Board had carefully weighed the evidence and assessed her credibility. The Board found her incredible. There is therefore no factual basis to support her claim under any of the grounds under the USM. Basically, the Applicant failed to discharge her burden of proving her fears and risks. This is a finding of fact solely within the realm of the Board which the court may not interfere save for errors of law, procedural unfairness or irrationality. It gave reasons for its finding. As the Applicant bears the burden of proof of his claims, such a finding is fatal.
22. The Board did not stop there. It also assessed her claim on the basis of the case as she asserted. It found that even on those facts she is not entitled to protection as a matter of law. This is a mixed finding of fact and of the law. Insofar as it is a finding of fact, save for the minor blemish mentioned in Paragraph 15 above which is an error of law, the Applicant could have no complaint, as the Board assessed her claim on the basis of the case as she asserted. But as explained in that paragraph, that error has no adverse impact on the overall Decision. Insofar as the finding is a finding of the law, it is absolutely correct.
23. Save for the above blemish, there were no fatal errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court is satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
24. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 24th day of January 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 24/1/2024
Dao Thi Ha
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 24/1/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8431/17/9/103/V1664
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1843/17 (Formerly RBCZ 12885/16)
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)]
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