Ta Dinh Hai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 1536/2021 on BabelCite. This High Court CFI judgment.
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 January 2021 [1] (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 11 October 2021 (the “2021 Decision”).
Cites 2 cases
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HCAL 1536/2021 [2022] HKCFI 815 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1536 of 2021 BETWEEN
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:
Observations for the Applicant (Order by Deputy High Court Judge To): Introduction 1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 January 2021[1] (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 11 October 2021 (the “2021 Decision”). 2.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated his complaints against the Director as if they were directed at the Board also. 3.The Applicant is a Vietnamese national, aged 53. He had entered Hong Kong on number of occasions previously. He had lodged a non-refoulement claim on 16 April 2014 (the “2014 Claim”), submitted a non-refoulement claim form (the “2018 NCF”) and attended a screening interview in 2018 respectively. His claim was rejected by the Director. His appeal against the Director’s decision was dismissed by the Board on 10 September 2018 (the “2018 Decision”). He was repatriated back to Vietnam on 20 November 2018. 4.He was arrested in Hong Kong on 25 September 2019. He claimed he had left Vietnam on 13 September 2019 and entered Hong Kong via the Mainland on 16 September 2019. He was sentenced to 28 months’ imprisonment in relation to some immigration offences and released from prison on 15 April 2021. While he was in prison, he raised his second non-refoulement claim on 6 July 2020. His claim was treated as a subsequent claim under section 37ZP of the Immigration Ordinance. He submitted a non-refoulement claim form (the “2020 NCF”) and attended a screening interview. 5.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 12 January 2021 (the “Notice”), the Director rejected his claims under all four applicable grounds. He appealed to the Board against the decision of the Director in the Notice. The appeal was heard on 25 August 2021 and 14 September 2021. On 11 October 2021, the Board dismissed his appeal (the “2021 Decision”). On 21 October 2021, he applied for leave to apply for judicial review of the Decision of the Board. 6.The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the 2021 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 7.The following account of the Applicant’s case is mainly based on the information in his 2020 NCF which was prepared by him with assistance of the Duty Lawyer Service. 8.The Applicant is a Vietnamese national. He published a film clip on the internet about Vang Anh (a very well-known and powerful movie star in Vietnam) and her boyfriend in 2008. As a result, he and his son were sent to prison without trial. On his release after four months, he was told by his wife that the police and gangsters employed by Vang Anh had gone to their home many times threatening to beat him up and kill him. His wife mortgaged their house for Vietnamese Dong (“VND”) 300 million to pay the police and gangster to secure his release. Because of the relentless harassment, his son ran away and the Applicant fled to Hong Kong. 9.Upon his repatriation in March 2011, he was arrested and sent to prison. He was beaten up and sentenced to 3 years’ imprisonment after trial. He was released in March 2013 for health reasons. Upon his release, he found his house had been confiscated. He could not get a job. Out of fear, he fled to Hong Kong again in May 2013. 10.He was repatriated to Hanoi on 21 December 2018. He wanted to start a pig farming business with friend (the “Partner”), with each contributing VDN 500 million. His mother mortgaged her house to obtain a loan of VND 300 million at an interest rate of 5% per month to finance his business. In February 2019, he borrowed VND 200 million from a moneylender (the “Moneylender”) at an interest rate of 10% per month to make up the shortfall. He started business on 20 February 2019. At the beginning, he was able to pay interest regularly. 11.However, in June 2019, because of the African swine fever, sale of pigs was banned in Vietnam. Government promised a compensation but it would not be released until after six months. As a result, he had no money to pay the interest of his and his mother’s loans. His mother’s house was foreclosed by the bank. The Moneylender also started to chase him for repayment at the end of June and threatened him every day. 12.In July 2019, the Moneylender with four to five of men armed with knives and wooden poles approached him and demanded repayment. The Applicant could not pay. The men assaulted him for about ten minutes. He was then told to repay by mid-August. 13.The Moneylender’s men visited him every three to five days thereafter to remind him of the repayment. Out of worry, his mother’s health deteriorated and died at the end of August. Then the Moneylender gave him up to October 2019 to repay the principal and outstanding interest. Out of fear, he fled to China on 13 September 2019 and then sneaked into Hong Kong. The finding of the Board 14.The Board found the Applicant incredible and did not accept his account. The centrepiece of his case is his fear of harm and death from the Moneylender. The linchpin of his case is the pig farming business substantially financed by his mother. This is in direct contradiction with his case as alleged in the 2018 NCF in which he said both his parents were deceased. He explained that the contradiction was a clerical or interpretation mistake. This explanation was woeful as he made no mention of his parents when asked about his family members during the screening interview. There were other inconsistencies and difficulties in his evidence. For example, he gave different names of the bank which allegedly lent money to his mother. He could not remember the name of his Partner. He could not give any particulars as to how the total investment of VND 1,000 million was spent in his pig farm. The Board also found his story about abandoning the pig farm and foreclosure of his mother’s house implausible. In conclusion, the Board found the Applicant failed to prove even on the low standard the primary facts to support a claim for protection on any of the applicable grounds under the USM. This finding of fact is fatal to the Applicant’s claim. 15.The Board went further. Assuming that the Applicant’s case were adopted, the Board made the following further finding. Based on the very limited evidence on the Moneylender and the low intensity and frequency of the past incidents, the Board found that the evidence does not demonstrate a manifest intention or ability on the part of the Moneylender to seriously harm the Applicant in the past or in the future. It found that the past threats and assault came nowhere near attaining a minimum level of severity. It also found that the Moneylender and his men were non-state actors. Their dispute with the Applicant is a private loan dispute. Their use of force on the Applicant was not acts instigated, acquiesced, sponsored or condoned by the state. Based on the Country of Origin Information, the Board was satisfied that state protection is available. Hence, the Board did not accept that the Applicant has proved a real risk of serious harm on his return to Vietnam. The Board then concluded that even if the Applicant’s case were adopted, by reason of the further finding above, he was not qualified for protection as a matter of law and fact under any of the four applicable grounds. Grounds of application 16.The Applicant did not state his grounds of application in the Form 86. In his supporting affirmation filed on the same day, the Applicant said:
The sole ground of his application is that he disagrees with the 2021 Decision of the Board, particularly its finding that it would be safe for him to return to Vietnam. He did not give any particulars as to what is wrong with the 2021 Decision that calls for judicial review. In essence, this is an appeal against the finding of the Board dressed up as a judicial review. The applicable legal principles 17.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[7]. Discussion and conclusion 18.The Applicant’s sole ground of application is that he is not satisfied with the 2021 Decision of the Director. But he did not put forward any specific grounds in his notice of application. As mentioned above, 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. In the absence of specific or particularised grounds, the Court could only focus its attention on possible criticism of the 2021 Decision on the basis of error of law, unreasonableness and irrationality. 19.The Applicant’s claims are founded on his fear arising from his Moneylender’s threat to harm or even kill him. The 2021 Decision of the Board was based on its finding of the Applicant’s credibility. The Board had carefully weighed the evidence and assessed his credibility, but found against him. The Board found he was not telling the truth and did not accept his evidence about the threats to his life. The Board further found even if his evidence were adopted, on the fact and on the law, he is not entitled to protection under any of the four applicable grounds under the USM. As the Applicant bears the burden of proof of his claims, such a finding is fatal. 20.Having rigorously examined the 2021 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 and quoted relevant precedents in support. It correctly identified the factual and legal issues involved 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 claims for non-refoulement protection under any of the four applicable grounds. This conclusion was further supported by availability of internal relocation. The 2021 Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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 2021 Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. His intended judicial review has no prospect of success. Accordingly, his application for leave to apply for judicial review is refused. Dated 23rd day of March 2022.
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] The date of the decision mentioned by the Applicant in the Notice of Application for Leave to Apply for Judicial Review is 11 October 2021. As the Court’s enquiries show, the only relevant notice issued by the Director is one dated 12 January 2021 which is the subject matter of the Decision of the Board. [3] 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 [4] 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”) [5] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [7] [2018] HKCA 524 at para 14(1) |
Cases cited in this judgment