Do Ngoc Thanh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 73/2022

[2022] HKCFI 1354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 73 of 2022

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.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 October 2021 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 10 January 2022 (the “Decision”).  The Applicant has not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

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[1] and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[2].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, now aged 33.   He claimed to have entered Hong Kong illegally on 16 January 2020.  He was arrested by the police on 1 February 2020.  On 19 February 2020, he raised a non-refoulement claim.

4.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 October 2021, the Director rejected his claims under all four applicable grounds.

5.He appealed to the Board against the decision of the Director in the Notice.  On 10 January 2022, the Board dismissed his appeal.  On 19 January 2022, he applied for leave to apply for judicial review of that Decision of the Board. 

The Applicants’ case

6.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. 

7.The Applicant was born and raised in Tinh Hai Duong, Vietnam.  He was married but is now divorced.  He does not know the whereabouts of his ex-wife.  He had a son who had passed away in 2014.  He had received 9 years of education and has working experience as a coal miner, a sea sand extraction worker, a construction worker and a farmer.

8.After learning his friend had made a profit operating a fish farm, he quit his job as a construction worker and raised a loan of 2 billion Vietnamese Dong (“VDN”) from a moneylender for operating a fish farm in September 2019.  Under a written loan agreement, he had to pay monthly interest of VDN 3 million and to repay the loan within two years.  He did not know the full name of the moneylender.  He only knew the moneylender was a triad member and had a wide network in Vietnam.

9.Initially, the Applicant was able to pay the monthly interest from September to December 2019.  However, he suffered a great loss due to outbreak of the pandemic in fish.  He closed down his fish farm in around December 2019 and turned to land farming instead.  He was unable to make any interest payments. 

10.One day, the moneylender sent ten men armed with sabres and swords to his home to collect payment. The Applicant pleaded for time to pay.  The men refused.  One or two of them kicked and punched him.  Before they left, they threatened to kill him if he failed to pay the next time they come.

11.In the following week, the men visited him every day to collect payment.  On each occasion, they carried weapons, punched and kicked the Applicant and damaged the furniture.  They threatened to kill the Applicant unless he made payments. They did not harm the Applicant’s father who was living with the Applicant.  The Applicant did not seek treatment from any doctor because he could not afford to pay consultation fee.

12.The Applicant made a report to the police after each harassment but the police told him each time that nothing could be done as triads were involved.

13.After a week of harassment, the Applicant fled from his home and hid himself in different abandoned houses.  Eventually, on his friend’s advice he fled to Mong Cai City.  From there, he sneaked into Dongxing City in the Mainland and then to Hong Kong.

The finding of the Board

14.The Board accepted the Applicant’s story as internally consistent with his claim that he was pursued by his moneylender for his failure to repay the loan and assessed his claim for non-refoulement protection on the basis of the case as he asserted.

15.The Board found that the Applicant’s feared harm arose from a private monetary dispute with his moneylender and did not fall[7] within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  That was sufficient to dispose of the Applicant’s claim under Persecution Risk ground. 

16.To deal with the Applicant’s complaint that he could not obtain police protection against the moneylender because his case involved gang members, the Board researched extensively into the Country of Origin Information (“COI”).  The Board noted that the Vietnamese police is corrupt and threats and violence associated with money lending and debt collection activities is prevalent in Vietnam.  It also noted the government’s effort in fighting corruption and violence arising from illegal money lending activities.  On balance, the Board was satisfied that state protection of an adequate standard is available to the Applicant should he seek police protection. 

17.At the hearing, the Applicant clarified to the Board that the police officers said that they could not help him because he demanded 24-hour body guard protection from the police[8]. It is well settled that the primary duty of the home state is to establish and to operate a system of protection against persecution of its own nationals.  The standard to be applied is not one which would eliminate all risk as to amount on a guarantee of protection in the home state, but a practical standard which takes proper account of the duty which the state owes to all its own nationals: see Horvath v Secretary of State for the Home Department[9]. The Applicant’s demand for round the clock protection is a demand for a standard much higher than the practical standard.  Refusal by the Vietnamese police to provide that standard does not mean he was denied state protection.

18.In respect of his claim under BOR 2 Risk ground, it is not the Applicant’s case that a sentence of death will be imposed on him on his return to Vietnam.  The Board also found the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under BOR 2(1) will be violated if he is refouled to Vietnam.  Accordingly, the Board rejected his claim under BOR 2 Risk ground.

19.As for his claim under BOR 3 Risk ground, it is the Applicant’s case that he suffered minor injuries which he recovered in a week.  Such injuries could not meet the high threshold of proof required under this ground.  Accordingly, the Board held that the Applicant would face no genuine and substantial risk of being subjected to ill-treatment, if refouled.

20.To succeed under the Torture Risk ground, the Applicant has to prove that he suffered torture within the meaning of section 37U(1) of the Immigration Ordinance. In essence, the ill-treatment he received must attain a minimum level of severity, for purposes stated in the section and inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  For the same reasons as given in the preceding paragraph, the minor injuries suffered by the Applicant could not attain a minimum level of severity required to support a claim under this ground.  There is no evidence of active or passive state acquiescence in the moneylender’s ill-treatment of the Applicant.  There is no evidence that the Applicant was targeted by or of interest to the Vietnamese government or that the moneylender was acting under the instruction of certain government officials.  There is also no report or evidence that the Vietnamese government would fail to discharge its duty of protecting its citizens or would tolerate any unlawful and allusive behaviour by an individual, government official or member of any political party as a systemic practice.  Indeed, the COI shows the government’s effort in eliminating illegal moneylending activities and the violence associated to such activities.  Accordingly, the Board dismissed the Applicant’s claim under this ground.

The applicable legal principles          

21.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[10].

Grounds for judicial review

22.The Applicant did not state any ground in support of his application for judicial review.  In his supporting affirmation, he said he disagrees with the Decision, he could not return to Vietnam and his life will be in danger.  The essence of his complaint is that he disagrees with the finding of the Board that it is safe for him to return to Vietnam. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Vietnam and that state protection is available to prevent or reduce the risk. In effect, he is seeking to appeal the Decision or the Board’s finding of fact under the guise of 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. 

Conclusion

23.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; the burden of proof and standard of proof; and observed a very high standard of fairness.  On his evidence, the Board found that his fear of reprisal not well-founded.  It was on that basis that the Board found that 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 state protection. The Court could detect no error in law or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s 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 Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

24.For the above reasons, leave to apply for judicial review was refused.

Dated 12^th day of May 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