Nguyen Thi Xiem v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1712/2021

[2022] HKCFI 1469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1712 of 2021

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 (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 8 November 2021 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 July 2021 (the “Notice”). 

2.The Applicant is a Vietnamese national, now aged 47.   She was arrested by the police on 21 September 2020.  She claimed to have entered Hong Kong illegally from Mainland China earlier that month.  On 12 May 2021, she raised a non-refoulement claim.

3.In due course, her non-refoulement 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].  By a Notice of Decision dated 30 July 2021, the Director rejected her claims under all four applicable grounds.

4.She appealed to the Board against the decision of the Director in the Notice.  On 8 November 2021, the Board dismissed her appeal.  On 2 December 2021, she applied for leave to apply for judicial review of that Decision of the Board. 

The Applicant’s case

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

6.The Applicant borrowed 600 million Vietnamese Dong (“VND”) from a moneylender with triad background in mid-2019 for operating a poultry farm in September 2019.  Under the loan agreement, she had to repay the loan and monthly interest of VND 30 million within one year. 

7.The business of her poultry farm failed because of the avian flu and had to be closed down. Towards the end of June 2020, the moneylender and seven of his followers went to her home to demand repayment.  Upon her pleading, the moneylender gave her a month to pay.  No threat was uttered during that incident.

8.Towards the end of July 2020, the moneylender and his men came to her home and demanded repayment.  The Applicant again begged for more time to pay.  The moneylender and his men used abusive and insulting language at her, but nevertheless gave her another month to pay under the threat of death.

9.Towards the end of August 2020, the moneylender and his men came again.  They were armed with wooden poles.  When the Applicant said she was unable to repay, the moneylender ordered his men to hit her left leg twice.  Her leg bled as a result.  She begged for more time to repay.  The moneylender gave her another month to repay and threatened to take her life if she could not repay this time or if she reported the incident to the police.

10.At the suggestion of her friend, the Applicant fled to China in September 2020 and then sneaked into Hong Kong from Shenzhen. 

11.While in Hong Kong, the Applicant was told by her family that the moneylender was still looking for her and verbally harassed and threatened them.

12.The Applicant did not make any report to the police because she believed the police would not help her.  She also did not seek assistance from other government departments.

The finding of the Board

13.The Board accepted the Applicant’s story as internally consistent with her claim.  It noted that only verbal threats were uttered during the second debt collection incident; and that injuries were only inflicted during the third incident but the injuries were not sufficient to reach the minimum level of severity.  It also found that they were inflicted for the purpose of giving the Applicant pressure to repay and the moneylender had no real intention to seriously harm or kill her.  The Board found that ill-treatment suffered by the Applicant was inflicted as a result a personal monetary dispute and not for any purpose within the meaning of section 37U(1) of the Immigration Ordinance.  It was inflicted by the moneylender and not by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  Hence, the ill-treatment did not constitute “torture” within the meaning of Torture Risk ground.  In addition, based on credible Country of Origin Information (“COI”), the Board was satisfied that state protection of adequate standard is available to protect the Applicant from the feared harm.  For all these reasons, the Board dismissed the Applicant’s claim under the Torture Risk ground.

14.Essentially because the injuries suffered by the Applicant did not reach the minimum level of severity and as state protection is available, the Board dismissed her claim under BOR 3 Risk ground.

15.As the ill-treatment suffered by the Applicant arose out of a personal monetary dispute and not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees, the Board held that her claim falls outside the protection of Persecution Risk ground.

16.In respect of her claim under BOR 2 Risk ground, the Board found the Applicant had failed to establish a personal and real risk of her absolute and non-derogable rights under BOR 2 being violated if she is refouled to Vietnam.

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[5].

Grounds for judicial review

18.The Applicant did not state any ground in support of her application for judicial review in her Form 86 or her supporting affirmation.  The essence of her complaint is that she disagrees with the finding of the Board that it is safe for her to return to Vietnam.  She is seeking to challenge the Board’s finding of fact that she 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, she is seeking to appeal 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.

19.In response to the Court’s letter dated 8 April 2022 inviting her submission, the Applicant submitted a letter written in Vietnamese.  This letter was read out by the Applicant and translated with the help of the court interpreter at the hearing. In essence, she alleged that while she was detained in Lo Wu immigration facilities in mid-August 2021, she was informed by her brother from Vietnam that her husband was murdered.  She believed her husband was murdered by the moneylender.  She said her brother told her that it is still unsafe in Vietnam because she will be murdered.  The incident allegedly took place in mid-August 2021, about two months before the hearing of the appeal.  She was adamant that she had told the Board about the murder.  She argued that it is still unsafe for her to return to Vietnam.  She was unable to produce evidence of the murder, not even a death certificate of her husband.  The incident was not mentioned by the Board in the Decision.  The alleged murder was raised by the Applicant to support her claim that it is still unsafe for her to return to Vietnam.  Had she raised this incident at the hearing of the appeal, the Board would have recorded it and dealt with it in its Decision; and if it did not, the Decision was reached as a result of error of law in failing to take relevant consideration into account, procedural unfairness and the Decision was irrational.

20.While waiting for a copy of the audio recording of the proceeding before the Board, the Applicant wrote to withdraw her application.  In the circumstances, this course of inquiries was not pursued.  Even if her allegation were true, which this Court very seriously doubted because of the surreptitious circumstances under which it was raised, the Board’s Decision will still stand because of availability of state protection.  Furthermore, the murder which allegedly occurred after the Decision was made, is not a relevant fact which the Board could and should take into account, because it may only take into account the factual circumstances at the time of the making of the Decision.  If the Applicant wished to rely on the murder as evidence of the risk to her life, she should make a request for filing a subsequent claim under section 37ZO of the Immigration Ordinance. Then that request and the subsequent claim, if the request is allowed by the Director, will be processed in accordance with relevant provisions of the Ordinance.  The Director will have to make a finding of fact whether the allegation was true and whether the subsequent claim a realistic prospect of success.  It is not open to this Court to make those finding of facts.

Conclusion

21.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 her evidence, the Board found that her fear of reprisal was not well-founded.  It was on that basis that the Board found that there was no factual basis to support the Applicants’ 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.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her 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 or 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. 

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

Dated 20^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

[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)