Bui Ngoc Le v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 991/2021 on BabelCite. This High Court CFI judgment was delivered on 17 June 2022.
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 23 October 2020 (the “Notice”) [1] and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 2 July 2021 (the “Decision”).
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HCAL 991/2021 [2022] HKCFI 1819 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 991 of 2021
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 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 23 October 2020 (the “Notice”)[1] and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 2 July 2021 (the “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[2] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[3]. 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 national of Vietnam, now aged 56. He entered Hong Kong on 24 June 2015 illegally and surrendered to the authorities on 30 June 2015. In mid-July 2015, 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[4]; BOR 3 Risk[5]; Persecution Risk[6]; and BOR 2 Risk[7]. By a Notice of Decision dated 23 October 2020, 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. By its Decision dated 2 July 2021, the Board dismissed his appeal (the “Decision”). On 14 July 2021, he applied for leave to apply for judicial review of the Decision of the Board. The Applicant’s case 6.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that he would be harmed by a loan shark, PHAM Van Tuan (“Pham”), if he was returned to Vietnam. 7.The Applicant claimed to have been sentenced to 18-month imprisonment by the Vietnamese government in 1987 for an immigration offence. After his release, he entered Hong Kong in 1989 and again in 1991 to seek refugee protection, but was deported to Vietnam on both occasions. He has two sons with his ex-wife and his family resides in Vietnam. He had worked in the reconnaissance unit of the former Vietnamese government during 1984-1987. After that, he worked as a driver between 1991 and 2012. Then, he operated a seafood business. 8.In 2012, the Applicant took out a loan of about VND 500 million from Pham at a monthly interest of VND 25 million for his seafood business. Under the agreement, there was no date fixed for repayment of the principal. He was able to pay interest until early 2015, when his livestock perished from the cold weather. Thereafter, he was unable to make payments. 9.Around March 2015, Pham sent men to look for him twice to thrice, but he happened to be out at the time. He learnt about these visits from his neighbours. In an afternoon in April 2015, Pham and six or seven of his men came to the Applicant’s home and demanded interest payments. They were armed with sabres and swords. The Applicant told them he could not pay because his livestock had perished. Upon hearing this, Pham and his men kidnapped the Applicant and beat him for two hours. He was released the next day after promising to come up with a way to pay. Pham warned him that they would kidnap him and his family unless he made payment. Pham took his truck as security, but its value was hardly enough for settling the debt owed. 10.Upon his release, the Applicant immediately fled to Mong Cai which was some 100 kilometres from his home. He stayed there for about 2 months. He treated the bruises all over his body with ointment. On 22 June 2015, he went to Mainland China on the strength of his Vietnamese passport. Then, he sneaked into Hong Kong on 24 June 2015. He did not encounter Pham or his men during this period. 11.His family made a report to the police in Tinh Quang Ninh but the police told them that the debt should be repaid and there was nothing they could do. 12.The Applicant learnt from his eldest son on 9 June 2020 that Pham threatened to cut off his fingers as repayment. The finding of the Board 13.The Board found the Applicant incredible and did not accept his account. The Board identified the following improbabilities or inconsistencies in his evidence:
14.The Board found the Applicant incredible for repeatedly absconding. He was released on recognisance and was due to report to the Immigration Department on 24 February 2016. He absconded and did not prosecute his claim for non-refoulement protection. He was arrested more than four years later when he was found to have taken up unlawful employment using a false instrument. He was subsequently convicted of those offences on 9 May 2020. 15.The Board did not accept his evidence. It inferred from the above finding that the Applicant’s real purpose of coming to Hong Kong was to seek employment rather than non-refoulement protection. It found there was no basis to support the Applicant’s claim for non-refoulement protection and dismissed his appeal. 16.The Board further held that even if his case were accepted, the Applicant was not entitled to protection because of availability of state protection and internal relocation. It was the Applicant’s own choice not to seek police protection and there was no concrete evidence to suggest that the Vietnamese government would be unwilling or unable to offer him protection from Pham. In addition, as an able-bodied person with good working experience, it would not be unreasonable to expect him to relocate to other parts of Vietnam such as Ho Chi Minh city to avoid the risk. Legal principles applicable to judicial review 17.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[8]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality. Grounds for judicial review 18.The Applicant gave the following grounds for his application in the Form 86:
In his supporting affirmation filed on the same day, the Applicant exhibited a copy of the Director’s Notice; but provided no other grounds or evidence in support. In substance, the Applicant is challenging the Decision on the usual grounds of error of law, procedural unfairness and irrationality. But he did not give any particulars. 19.At the hearing, the Court made repeated attempts to elucidate from him particulars of his grounds of review. He could identify no errors of law, or procedural unfairness or irrationality. He only repeated his case, his debt, his inability to repay, his fear of violence from Pham, lack of state protection and non-feasibility of internal relocation. He was only challenging the Board’s finding of fact on these issues. Discussion 20.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. 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 decision in the Notice. It correctly identified the factual and legal issues involved in the claims. 21.The Applicant’s claims are founded on his alleged debt owed to Pham and the threats Pham made against him and his family members. The Board carefully weighed the evidence and assessed the Applicant’s credibility. It found him incredible and his evidence inherently improbable. It did not accept his evidence about his debt, the threats to his life and his risks. As the Applicant bore the burden of prove of his claims, such a finding was fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. This conclusion was further supported by availability of internal relocation. 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. 22.The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. 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. Conclusion 23.For the above reasons, leave to apply for judicial review was refused. Dated the 17th day of June 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 Director’s decision sought to be reviewed was not identified in the Form 86. However, a copy of the Notice of Decision dated 23 October 2020 was exhibited to the Applicant’s supporting affirmation. This Notice was therefore identified as the subject decision of the Director sought to be reviewed in the Form 86. [2] Section 37ZR of the Immigration Ordinance, Cap. 115 [4] 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 [5] 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”) [6] 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 [7] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [8] [2018] HKCA 524 at para 14(1) |
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