Le Thi Hang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2775/2018

[2021] HKCFI 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2775 of 2018

BETWEEN

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;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant is a Vietnamese national.  On 25 December 2013, she entered Dongxing City in Mainland China.  She sneaked into Hong Kong on 30 December 2013.  On 16 March 2014, she lodged a non-refoulement claim asserting that she will be harmed or killed by her moneylender if returned to Vietnam.

2.In due course, her 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].  By a Notice of Decision dated 18 July 2016 and a Notice of Further Decision dated 1 August 2017 (collectively, “the Notices”), the Director of Immigration (the “Director”) rejected her claims under all four applicable grounds.  She appealed to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notices.  The appeal was heard on 28 February 2018.  On 29 August 2018, the Board dismissed her appeal (the “Decision”).  On 5 December 2018, she applied for leave to apply for judicial review of the Decision of the Board.

3.The Applicant did not request an oral hearing. Having considered the papers, the Court was of the view that the application may be determined on paper without an oral hearing. 

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service. 

5.The Applicant is a Vietnamese woman.  She had come to Hong Kong and stayed in a refugee camp where she received nine years’ education.  She was then repatriated back to Vietnam.  She was divorced.  She has a son with her ex-husband who is now living in Vietnam with her mother.  However, as revealed in her grounds of application and submission, since coming to Hong Kong, the Applicant has remarried (presumably to a man with right of abode in Hong Kong) and has given birth to a son, now two years old.  

6.Between 2001 and 2010, the Applicant borrowed 600 million Vietnamese Dong from Nguyen Van Sin (阮文信) (“Nguyen”) to operate a shop selling potted plants. She suffered loss and was unable to repay the loan.  Nguyen did chase for repayment, but did not do anything to harm her.

7.In 2012, despite of her total lack of such experience, she borrowed 300 million Vietnamese Dong from a moneylender, Ah Chang (阿長) to start a fish farming business.  Under the loan agreement, she had to pay interest at the rate of 2% per month and to repay the principal and interest in April 2013.

8.In about May 2013, the Applicant ceased her fish farming business as her fish were infected with disease and she suffered loss.  She could not repay the loan.  Initially, Ah Chang only gave her warnings when chasing for repayment.  Then one day in May 2013, Ah Chang sent five men to her home to collect payment.  When she was unable to pay, the men assaulted her husband and threatened to kill her if she could not pay next time they came.  Her husband was hospitalised for three days and took another month to recover.

9.The Applicant telephoned the police for help but the police declined saying it was a personal monetary dispute.  Thinking that the police were corrupt, the Applicant did not pursue further with the police.

10.To avoid Ah Chang, the Applicant and her family split.  Her son went to stay with the Applicant’s mother, while her ex-husband went elsewhere on his own.  The Applicant stayed with her relatives until 25 December 2013 when she sneaked into China and then to Hong Kong.

The finding of the Board

11.The Board reminded itself that the Applicant bore the burden of proving her fear and risk, but the standard was a relatively low one.  It reminded itself that it was not always necessary to be absolutely persuaded that the Applicant’s assertions were certainly or even probably true.  However, the Board was not satisfied that the Applicant was a truthful witness.  The Board found it inherently incredible that with absolutely no knowledge and experience about fish farming she would have ventured into such a business.  The Board was also surprised that the Applicant did not even know what fish and shrimp to breed.  The Board found the Applicant’s case was a concoction.  The Board was not satisfied that the Applicant had proved the existence of the loan which is the centrepiece of her case of fear and risk. 

12.Having so rejected the Applicant’s evidence, the Board did not find it necessary to consider the Country of Origin Information (“COI”) because the issue of state protection did not arise in the absence of genuine fear and risk.  The Board did consider internal relocation a viable option based on the vastness of the country and its population.  But that is not a necessary consideration.

13.Essentially because of the Applicant’s failure in proving the loan, her fear and risk, the Board held that the Applicant has failed to substantiate her claims under all the four applicable grounds. 

Grounds of application

14.In her affirmation filed in support of her application, the Applicant only repeated her case of being unable to repay her debt and fear and risk of being killed by Ah Chang if returned to Vietnam.  In addition, she mentioned that she is now remarried and has a son.  She did not put forward any specific grounds in support of her application for leave to review the Decision. 

15.The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise 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].  The Applicant has not advanced any grounds in respect of these matters.  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; correctly applied the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

16.Accordingly, the Court concluded that there was nothing that show there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 7^th day of March 2018.

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]  [2018] HKCA 524 at para 14(1)