Bui Thi Dien v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 2620/2018

[2022] HKCFI 2110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2620 of 2018

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 / Non-Refoulement Claims Petition Office (the “Board”) dated 9 November 2018 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 December 2016 (the “Notice”).

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  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board also. 

3.The Applicant is a national of Vietnam, now aged 53.   She entered Hong Kong on 27 September 2015 illegally and surrendered to the authorities on 29 September 2015.  In November 2016, she raised a non-refoulement claim.

4.In due course, her 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 8 December 2016, the Director rejected her claims under all four applicable grounds.

5.She appealed to the Board against the decision of the Director in the Notice.  By its Decision dated 9 November 2018, the Board dismissed her appeal.  On 21 November 2018, she applied for leave to apply for judicial review of the Decision of the Board and the Notice of the Director.  The Applicant did not request 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.

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 her with legal assistance and the record of her screening interview in the presence of her lawyer.    In gist, she claimed that she will be killed by a loan shark (“Chinh”) upon her return.

7.The Applicant received education up to junior high school.  She is married and has a son and a daughter.  Her family used to reside in Vietnam.  In early 2014, she borrowed VND 1 billion from Chinh at an interest rate of VND 10 million per month in order to speculate in two plots of land.  Chinh is her classmate from her primary school and his family operates a pawn shop.  She claimed that most pawn shops in Vietnam engage triads to help with loan recovery.

8.About five to six months later, the land price in Vietnam dropped and she could not sell the land.  Her husband used parts of the land for farming as the land has become worthless and no one was interested in buying it.

9.She did not make any repayment as she could not sell the land.  She did not receive any demand from Chinh in the first eight months after the loan.  Then, Chinh visited her and gently asked her to repay as soon as possible.  About a month later, that was around June 2015, Chinh went to her residence with five or six triad members armed with wooden poles and knives.  They threaten to kill her if she did not repay.  Thereafter, they came on four occasions to demand repayment.  On two occasions, they slapped the Applicant and beat her with wooden poles a few times.  On the last occasion, they gave her a month to pay and threatened to kill her if she could not.  The Applicant received treatment in a clinic.  She was prescribed oral and external medicines.  She recovered after a month. 

10.A few days before the one-month deadline imposed by Chinh, the Applicant left her home and stayed in the homes of her friends and boarding houses.  Chinh and his associates came to her house every week to harass her husband and son.  They threatened to kill the Applicant if she did not repay.  The Applicant’s husband and son said they did not know where the Applicant had gone.  Chinh did not cause them any harm.

11.Then the Applicant fled to Hong Kong to seek protection.  After arriving in Hong Kong, she learnt from her family that Chinh had come to her home once or twice a month to demand payment, but had not harmed her family. 

12.At the hearing, the Applicant said that she only maintained contact with her daughter before the hearing.  Her daughter did not have any updates on Chinh and did not know if Chinh had looked for her.  She confirmed she did not seek police assistance as she believed the Vietnamese police would not protect her without being paid a bribe and internal relocation is not viable because Chinh can locate her anywhere in Vietnam through his triad connections.

The finding of the Board

13.Although there were some inconsistencies in her evidence, the Board accept that she was telling the truth about the important aspects in her case and assessed her claim on the basis of the case as she asserted.  The Board found that the dispute between Chinh and the Applicant was private in nature and there was no evidence of any state involvement or state acquiescence in the alleged ill-treatments towards her.  Chinh did not cause her serious injuries despite he had the opportunity to do so.  Chinh also did not harm her family.  The Board took the view that the ill-treatment inflicted on the Applicant was to pressurise her into making payment and Chinh had no intention to cause her serious harm or to kill her. The Board assessed her risk of being subjected to ill-treatment upon her return to Vietnam to be low.  Upon that finding, the Board did not find it necessary to consider internal relocation.

14.The Board held that the ill-treatment from Chinh did not fall within the protection of the 1951 Convention relating to the status of Refugees or its 1967 Protocol.  It also held that the ill-treatment did not meet the necessary threshold of severity. 

15.On the basis of credible Country of Origin Information, the Board found that state protection of an adequate standard is available to prevent or negate the risk and harm from Chinh. It was satisfied that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens.    The Applicant had never sought protection from the Vietnamese police and there was nothing to suggest that she would not be protected by the Vietnamese government upon her return.  The Board held that the availability of state protection is another ground to support the dismissal of the appeal.

16.Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicant had failed to prove the factual basis to support her claim for protection under any of the four applicable grounds under the USM.  It therefore upheld the decision of the Director in the Notice and dismissed her appeal.

The 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[7].  Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus 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 did not put forward any grounds in her notice of application for leave to apply for judicial review or her supporting affirmation.   She had been invited by the Court via its letter dated 10 February 2021 to advise the Court of her first language, contact number and to file submissions.  She replied that she had no further documents to submit. 

Discussion

19.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.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country.  In effect, 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.  

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.  Despite some inconsistencies in her evidence, the Board accepted the bulk of her evidence and assessed her claim on the basis of the case she asserted, except for the issue of state protection.  In essence, the Board found that the ill-treatment she suffered did not attain the minimum level of severity; that the risk of harm she would face upon her return to Vietnam is low; and that state protection is available.  It was on that basis that the Board found she had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving her fears and risks.  This is a finding of fact solely 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 Court could detect no errors of law in the Decision 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. 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

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

Dated 9^th day of March 2018.

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] Section 37ZR of the Immigration Ordinance, Cap. 115

[2] [2018] HKCA 549

[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 33 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)