Bui Thi Thanh Thuy v. Torture Claims Appeal Board

HCAL 144/2022

[2022] HKCFI 1932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 144 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 Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 60-year-old national of Vietnam who had repeatedly entered Hong Kong illegally in the past did so again sometime in 2020, and was arrested by police on 21 July 2020 for which she was subsequently convicted and sentenced to prison for 16 months. Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Hai Phong City, Vietnam. After completing 7 years of formal education up to third grade of the secondary school, she started working in various jobs of manual labour, married her husband and raised a family with 2 children in her home district.

3.In 2000 her husband was diagnosed with lung cancer, and to meet his ongoing hospital and medical expenses, the Applicant in early 2003 through the introduction of a relative borrowed a loan from a local money-lender, of whom she did not know anything other than that he had triad background, with interest charged on the principal sum payable per month until discharge of the loan.  

4.In late 2003 her husband passed away from his illness, and despite working on several jobs and sneaking into Hong Kong on several occasions to look for jobs with higher income, the Applicant in about 2005 started to have difficulty making her loan payments, and after selling her house but which was still insufficient to pay off the balance of her loan saddled with huge amount of accumulated interests, and after being beaten by the money-lender and his men on several occasions with threats of being killed if she still failed to repay her loan, the Applicant fled to Ho Chi Minh City to hide from her creditor, and in 2019 she again departed Vietnam for China and sneaked into Hong Kong, and after her subsequent arrest by the police and upon serving her imprisonment, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 February 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 26 March 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the money-lender and his men upon her return to Vietnam as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of her creditor to seriously harm or kill her other than to put pressure on her to repay her loan, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Vietnam with a large population of 102 million people spread across a vast territory of more than 330,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Vietnam away from her home district in large cities such as Hanoi where it would be difficult if not impossible for her creditor to locate her.

7.On 13 April 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 30 September 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 14 January 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence as to her claim of fear of harm from her creditor unclear, unsatisfactory and evasive in many ways which severely undermined the credibility of her claim that it was not persuaded that she would be in danger of being tortured or seriously harmed if refouled to Vietnam or that she would be entitled to non-refoulement protection in Hong Kong under any of the applicable grounds.

9.On 16 February 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, nor was she able to do so at the hearing of her application apart from repeating her claim as before and that also for health reason that she cannot return to Vietnam. Nevertheless, given the serious implication of the Board’s decision and the consequences of denying relief in applications of this nature, high standards of fairness require that the reasons for rejecting the Applicant’s non-refoulement claim be scrutinized by the Court for any error of law or procedural unfairness committed by the Board.

10.As noted above, in its decision the Board rejected the Applicant’s claim and dismissed her appeal wholly in its adverse finding against her credibility without considering any issue of the availability of state protection or internal relocation to the Applicant upon her return to Vietnam, and in so doing the Board did set out in details the evidence of the Applicant’s claim (see [18] – [40] of the Board’s decision), then proceeded to make its findings on her credibility in 2 paragraphs as follows:

                 “41. I found that the Appellant’s evidence was unclear, unsatisfactory and evasive in many ways. This severely undermined her credibility.

                 42. For example, when being asked at the hearing whether the creditor lending the money to her was a company or an individual, the Appellant was very evasive when responding to this straightforward question. The Appellant repeatedly said that she didn’t know the creditor but then she changed her evidence suddenly by saying that the name of the creditor was one Mr. Toan. When further being asked at eth hearing why she believed that Mr. Toan had a wide network and good connections in Vietnam, she could only respond very vaguely by saying that “Wherever I went always somebody followed me.”   

11.The Board did not go on to cite any further example or illustration as to why it found the Applicant’s evidence unclear, unsatisfactory or evasive despite stating that her evidence was such in many ways. Given the Applicant’s disclosed background and the details of her evidence as to the reason and circumstances that she came to obtain the loan from the money-lender as recorded in details in the Board’s decision as noted above, it appears to me too simplistic for the Board to reject her credibility wholly on the basis that she was unable to give clear answers to a couple of questions over what appear to be peripheral matters about the identity of her creditor, and in doing so it seems that the Board had failed to apply the principles for proper assessment of the credibility of such claims.   

12.The principles and methods for assessing and determining a non-refoulement claim are well established, with the burden of proof lies on an applicant to establish his or her claim, and then for the adjudicator to assess the validity of the evidence and the credibility of the applicant, as set out clearly in the UNHCR’s Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, reissued in December 2011 (“UNHCR Handbook”) in which it emphasizes the facts that in most cases a person fleeing from persecution will have arrived with the barest necessities sometimes even without personal documents, and hence while the burden of proof rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the adjudicator, and that in some cases it may be for the adjudicator to use all the means at his disposal to produce the necessary evidence in support of the application, and if the applicant’s account appears credible, and unless there are good reasons to the contrary, the applicant should be given the benefit of doubt (see [195] – [196]), of which the UNHCR Handbook further elaborates as follows:

                 “197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.

                 198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.

199. While an initial interview should normally suffice to bring an applicant’s story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradiction in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all the circumstances of the case.

…

201. Very frequently the fact-finding process will not be complete until a wide range of circumstances has been ascertained. Taking isolated incidents out of context may be misleading. The cumulative effect of the applicant’s experience must be taken into account. Where no single incident stands out above the others, sometimes a small incident may be “the last straw”; and although no single incident may be sufficient, all the incidents related by the applicant taken together, could make his fear “well-founded” (see paragraph 53 above).

202. Since the examiner’s conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that eth applicant may be an “underserving case.”.”

13.The Handbook further explains the necessity of giving the applicant the benefit of the doubt in appropriate situations as follows:

                 “203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized, it is therefore frequently necessary to give the applicant the benefit of the doubt.

                 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.” 

14.These guidance of the UNHCR Handbook have since been adopted by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 when Li CJ stated in the judgment of the Court at [21]:

“ … The Handbook states that, while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner. In appropriate cases, such as where statements are not susceptible of proof, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt: see paras. 195 and 196 of the handbook.”

15.It is critical to also note that the two-tier screening process under the Unified Screening Mechanism (“USM”) for non-refoulement claims is not an adversarial process, nor is it the role of the determining authority to contest an application for international protection or to strive with zeal to identify indicators of lack of credibility, but rather it is its duty to assess the relevant elements of the application in cooperation with the applicant to ensure that the application is examined and decision taken objectively and impartially, as it is emphasized by the UNHCR Report “Beyond Proof – Credibility Assessment in EU Asylum Systems”, May 2013 (“UNHCR Report”) of the importance of Article 8(2)(a) of the Asylum Procedures Directive (“APD”) at [37]:

“Article 8(2)(a) of APD requires Member States to ensure that applications for international protection are examined and decisions taken objectively and impartially. The requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it applies to the examination of all applications regardless of the applicant’s identity, background or circumstances.”

16.The UNHCR Report also notes that the challenges of the credibility assessment in the asylum procedure on decision-making are compounded by the geographical and cultural distance between the country of origin in which the alleged facts happened and the country in which the application for internal protection is examined, the amount of time that has elapsed between these facts and screening of the case, the psychology of the applicant and the interactions between him and the decision-maker are all relevant to the credibility assessment, as it elaborated at p31:

“The psychology of the applicant, the interviewer and, if different, the decision-maker, as well as the interactions between these persons are all relevant to the credibility assessment. A wide-range of factors influence these psychological processes, including age, gender, sexual orientation and/or gender identity, culture, social status, education, state of health, and mind-set at the time of the interaction. The credibility assessment will also reflect assumptions and behavior, values, attitudes, perceptions of and responses to risk, and about how a truthful account should be presented. When providing statements, applicants are required to recall relevant past and present facts to substantiate their application. The reliance by interviewers and decision-makers on the human memory must also be informed by evidence from neurobiology, and expectations of what can be recalled and how this is done, should be realistic.

                 Interviewers and decision-makers, therefore, in addition to knowledge of the relevant law and of the country of origin, need to be aware of and to understand these factors that impact on the credibility assessment and to be informed by the substantial body of empirical scientific evidence that exists in these fields.”

17.As noted in the UNHCR Report, multi-lingual and cross-cultural communication in asylum procedure increases scope for misunderstandings and errors, and though interpreters may help to overcome the linguistic barriers, decision-makers’ lack of familiarity with the cultural backgrounds of applicants as well as social modes or gender norms of their societies or origin may still pose a challenge to assessment of credibility, as Lord Justice Keene of the UK Court of Appeal stressed in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006 at [25]:

“An English judge may have, or think that he has, a shrewd idea of how a Lloyds broker or a Bristol wholesaler or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much uncertain about the reactions of a Nigerian merchant, or an Indian ships’ engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that men of different nationalities, educations, trades, experiences, creeds and temperaments would act as he might think he would have done or even – which may be quite different – in accordance with his concept of what a reasonable man would have done.”

18.The application of the principle of the benefit of the doubt therefore allows the decision-maker to reach a clear conclusion to accept an asserted material fact as credible even though there may be no other evidence to support the fact, which is reflected in the UK policy guidance, Asylum Instructions: Considering Asylum Claims and Assessing Credibility, February 2012 at [4.3.4]:

                 “[A] decision must be made whether to give the applicant the benefit of the doubt on each uncertain or unsubstantiated fact – this means that the decision-maker must come to a clear finding as to whether the fact can be accepted or rejected. It is not acceptable to come to a final conclusion that a claimed fact (about which you are uncertain) ‘may have happened’.”

19.In other words, having carefully assessed the credibility of the material facts with regard to all the relevant evidence obtained through the lens of the credibility indicators, as appropriate in the light of the applicant’s individual and contextual circumstances, and duly taking into account the reasonableness of any explanation provided by the applicant with regard to potentially adverse credibility findings, the decision-maker must determine whether to accept a material fact as credible or not, and if there is still some doubt over the credibility of some asserted facts, the decision-maker should consider whether to apply the principle of the benefit of the doubt: see UNHCR Report at p50.

20.Furthermore, high standards of fairness must be observed by the decision-maker in all aspect of the assessment and determination of applications of this nature, as Li CJ explained in Prabakar:

“43. The question in this appeal concerns the standard of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

                 44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”       

21.His Lordship went on to elaborate what high standards of fairness would require and what matters are to be considered in considering the potential deportee’s claim:

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows: (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. The question as to what weight the Secretary may properly place on UNHCR’s decision in relation to refugee status will be addressed later. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.

52. In assessing the potential deportee’s torture claim in accordance with the policy, all relevant matters should be considered including the following:

(1) The conditions in the country concerned: Is there evidence of a consistent pattern of gross, flagrant or mass violations of human rights in that country? Has the situation changed?

(2) Has the potential deportee been tortured in the past and how recently?

(3) Is there medical or other independent evidence to support the claim of past torture?

(4) Has the potential deportee engaged in political or other activity within or outside the country concerned which would make him vulnerable to the risk of being subjected to torture on return?

(5) Is the claim credible? Are there any material inconsistencies? Is there any evidence as to the credibility of the potential deportee?

53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by the persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the Refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the persons concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the persons concerned. For example …

                 55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”    

22.In the present case, as noted above, the Board rejected the Applicant’s claim because it found her evidence unclear, unsatisfactory and evasive in many ways which severely undermined her credibility, but only gave 2 examples of what appear to me peripheral matters such as her inability to tell whether her creditor was a company or an individual other than the name of Mr Toan, or why she believed that Mr Toan had a wide network and good connections in Vietnam, when it appears that she did give a clear and unambiguous answer to the former in [25], while in her situation and as a borrower she could not have been expected to give any meaningful answer to the latter. As they stand either solely or cumulatively, it seems reasonably arguable to me that their probity value could not be so substantial to undermine the credibility of the core of the Applicant’s claim as found by the Board.

23.Given the detailed evidence and information provided by the Applicant to both the Director and the Board for her claim as to the reason and circumstances for obtaining the loan and her subsequent failure to repay it and the resultant threats from her creditor, and to set them against the relevant COI referred to in the Director’s decision which show at that time in Vietnam that “Illegal moneylending is a widespread problem in Vietnam owing to the complicated nature of borrowing money from banks” and “Where people find themselves unable to repay loans they can be subject to harassment, kidnapping, assaults or forced to sell their house/assets to pay for the debt” (see [18.3] – [18.4] of the Director’s decision), which were all available in the hearing bundle and adopted by the Applicant as her evidence in support of her claim before the Board (see [6] of the Board’s decision), I fail to see why in the circumstances the Board would find her evidence unclear or unsatisfactory or that her credibility had been so undermined, or why the principle of the benefit of the doubt was not applied in her case.        

24.It seems to me that the Board in the circumstances could have applied the principle accordingly, and then proceeded to consider the availability of state/police protection and internal relocation in the Applicant’s situation, which the Director did accordingly in his decision, but somehow the Board did not find it appropriate or necessary to do in its determination of the Applicant’s claim, nor did it give any reason as to why it did not do so.

25.In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that it erred in law in its assessment of the credibility of the Applicant’s claim, and/or that it failed to give sufficient reasons for rejecting her credibility, and/or that its reasons for rejecting her credibility were irrational or unreasonable in the circumstances, and meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.    

26.Accordingly, I grant leave to the Applicant to do so, and direct that she shall file and issue an originating summons within 14 days, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 24^th 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