Pham Van Ngoc v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2258/2018 on BabelCite. This High Court CFI judgment was delivered on 3 February 2023.
1. This is the Applicant’s application by Form 86 filed on 18 October 2018 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 5 October 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 October 2016 (the “Notice”). Though the Director is named as a proposed respondent, no relief is sought in respect of
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HCAL 2258/2018 [2023] HKCFI 335 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2258 of 2018
Application for Leave to Apply for Judicial Review 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 filed on 18 October 2018 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 5 October 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 27 October 2016 (the “Notice”). Though the Director is named as a proposed respondent, no relief is sought in respect of the Notice or any decision of the Director. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, the Form 86 is amended to the effect that the Director be named as an interested party instead of a proposed respondent. The Notice and Decision are written in Chinese. As the Form 86 and supporting affirmation are written in English, the Form CALL-1 and Order are prepared in English. 2.The Applicant is a Vietnamese national, now aged 39. He had previously entered Hong Kong illegally on 6 August 1989 and again in around 2012. He was deported to Vietnam on both occasions. He entered Hong Kong illegally again and was arrested on 20 August 2013. On 12 March 2014, he raised a non-refoulement claim. 3.In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 27 October 2016, the Director rejected his claims under all four applicable grounds. 4.He appealed to the Board against the decision of the Director in the Notice. His appeal was dismissed by the Board’s Decision dated 5 October 2018. He now applies for leave to apply for judicial review of the Decision. 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 5.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 three moneylenders, Tuan, Quang and Huy (collectively, the “moneylenders”) upon his return to Vietnam. 6.The Applicant was born in Haiphong, Vietnam. He is married with 3 children. His parents, wife and two sons are residing in Hong Kong. He received university education and has about 3 years of working experience as a sailor. 7.At the suggestion of his wife, he started a moneylending business in early 2010. He took out three loans from the three moneylenders as capital for starting his business. The loans totalled to VND 710 million at a monthly interest of 10%. Tuan’s and Quang’s loans had to be repaid in six months and Huy’s in one year. He lent out the money to his friends but they disappeared after six months. He paid interest to his moneylenders for two to four months only. 8.Initially, Tuan and Quang demanded payment over phone. Later, Tuan and his associates went to his home to demand payment, but he could not pay. They damaged his furniture and attacked him with wooden sticks. They threatened to kill him on their next visit. The Applicant went to a hospital for treatment and it took him two to three months to fully recover. This was the only attack he suffered from the moneylenders. Quang went to his home to demand payment and damaged the furniture therein, but did not harm him or his family. Huy only threatened to visit him in his home but he never did. 9.In around February 2012, he fled to Tinh Nam Dinh to hide from the moneylenders. He later fled to Hanoi from where he came to Hong Kong. He was arrested in December 2012 and was deported to Vietnam in February 2013. He stayed peacefully in a different village while in Vietnam and entered Hong Kong again in August 2013 for the same reason. While in Hong Kong, he learnt that the moneylenders had visited his home from time to time but did not harm his family members. 10.The Applicant did not believe the Vietnamese police would protect him. He had made a police report after receiving threatening calls from Tuan but the police told him they would not intervene in private affairs. He did not believe he could safely relocate to other parts of Vietnam because the moneylenders would eventually locate him and kill him. The finding of the Board 11.The Board found the Applicant incredible and did not accept his account. The Board identified various inconsistencies between his case as asserted in the NCF and his testimony before the Board. It also found his evidence lacking in details. He was unable to state the precise amount of loan or the deadline for repayment and could not recall the number of his debtors to whom he lent money. The Board noted that on his evidence he only lent out VND 300 million to his debtors and should not have any problem paying interest to his moneylenders in view of the loan he had borrowed from them. When this was put to him, he fabricated a new case of his wife operating a gambling establishment which suffered heavy loss as explanation. 12.The Board noted that he gave different accounts on how he was attacked. In the NCF, he claimed that he was attacked in his home. In the hearing before the Board, he said he was attacked while riding his motorcycle on the road. The two accounts are so strikingly different that the Board could not accept that there was any innocent explanation for the inconsistency. 13.The Board also considered his case of operating a moneylending business inherently incredible. He borrowed at the interest rate of 10% per month and lent out at the rate of 12%, leaving a gross profit of 2% only. He had no record of his debtors, kept no security for his loans and made no provision for bad debt. Such a business did not appear to be genuine or viable. 14.The Board rejected his claim about having taken out loans from the moneylenders and being assaulted and threatened by them because of his inability to repay. As that is the sole factual basis of his claim for non-refoulement protection, such a finding is fatal. The Board found he had failed to discharge the burden of proving that he will be subject to any of the proscribed risks of harm upon his return to Vietnam. 15.The Board went further and assessed his claim on the basis of the case as asserted by him. The Board considered the injuries he allegedly suffered from the past were not sufficiently serious as to demonstrate a real risk of harm to him in the future. It doubted if the moneylenders are still interested in harming him after the lapse of six or seven years, though it stopped short of making a finding on this point. It found the moneylenders and their men were non-state actors and their dispute with the Applicant is a private loan dispute. It therefore found that their use of force on the Applicant was not acts instigated, acquiesced or condoned by the state. 16.In relation to persecution risk, the Board found that his disputes with the moneylenders were purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion. The ill-treatment therefore falls outside the protection of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. 17.Despite his evidence that the police refused to assist him because the dispute arose out of a private monetary dispute, based on authoritative and credible Country of Origin Information, the Board was satisfied that state protection is available. Further, on his own evidence, when he was deported back to Vietnam in February 2013, he was able to live peacefully in another village without being harassed by the moneylenders. The Board did not accept that the moneylenders had the means to locate him or the motivation to do so after more than six years had lapsed. The Board also rejected his contention that his return would bring harm to his family members because his presence in Vietnam would have little impact on their decision to harm his family. Therefore, the Board held that as an able-bodied adult with a university education, it would not be unreasonable to expect him to relocate to other parts of Vietnam (such as Hanoi or Ho Chi Minh city) to avoid the risk of harm. 18.For all these reasons, the Board dismissed his appeal. The legal principles applicable to judicial review 19.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[5]. Grounds for judicial review 20.The Applicant did not put forward any grounds of application in his Form 86. In his supporting affirmation, he repeated the gist of his claim and his belief that he will be harmed or killed by his moneylenders if he returns to Vietnam. In effect, he is seeking to challenge the Board’s finding of fact that he failed to discharge the burden of proving his entitlement to protection under any of the four grounds under the USM. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds or grounds with sufficient particulars, in an application for leave to apply for judicial review, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality in the Decision. Discussion 21.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is 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; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and did not accepted his evidence. On that finding, the Applicant failed to establish the factual basis in support of his claim for non-refoulement protection under all four applicable grounds under the USM. That is fatal to his application. However, the Board went further and assessed his claim on the basis of the case as he asserted. But even on that basis, it found he is not entitled to protection under any of the four applicable grounds. This Court could detect no error of law in the Decision. The 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. The proposed judicial review has no realistic prospect of success. Conclusion 22.For the above reasons, leave to apply for judicial review is refused. Dated the 3rd day of February 2023
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 [14(1)] | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment