Nguyen Huu Tuan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 301/2022 [2024] HKCFI 2210 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 301 of 2022
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is an application by Mr Nguyen Huu Tuan (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 14 April 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 June 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant 2.As set out in the DOI Decision and the Board’s Decision, the Applicant is a Vietnamese. He was born on 17 January 1989. 3.He was born and raised in Haiphong, Vietnam. He received 9 years of education and had 15 years of work experience. He worked in Taiwan between early 2012 and mid-2015. The Claim 4.The Applicant relied on the following facts for his claim. As will be seen later, the Board found that he advanced a materially different case in his appeal to the Board. 5.In 2015, he took over the seafood farming business of his parents (“Business”). In about August 2018, he borrowed VND 900 million (“Loan”) from a moneylender known as Pham Van Pho (“Creditor”) for operating the Business. The Creditor was based in Haiphong and he was a gang member. 6.The terms of the loan agreement specified that the principal of the Loan would be due in two years and that he had to pay VND 3 million every four months as interest. 7.Due to water contamination, all his seafood perished in February 2019. He stopped paying the Creditor after the incident, after having only made two interest payments to the Creditor. 8.In an afternoon of April 2019, the Creditor and about six of his men came to the Applicant’s home to demand payment. The Applicant explained his situation and asked for more time. The Creditor damaged some of his furniture and threatened to harm him unless he paid interest in the next month. The Creditor and his men then left the Applicant’s home without harming the Applicant’s family. 9.About a month later, the Creditor and his associates came to the Applicant’s home again because the Applicant failed to make interest payment. They beat him with wooden rods and threatened to kill him unless he came up with the money next month. He suffered redness to his arms and calves. He was hospitalised for one week and was prescribed painkillers and antibiotics. 10.About a week after his discharge from the hospital, the Creditor came to his home again. The Creditor threatened to kill the Applicant and his men punched the Applicant a few times. According to the Applicant, he did not suffer any serious injury in this incident. 11.The Applicant fled to Hong Kong via Mainland China in June 2019. He did not make any claim for protection and was deported back to Vietnam in July 2019. After arriving in Hanoi on 2 July 2019, he stayed with his friend (Toan) in Mong Cai. He stayed in Mong Cai for about a year. 12.In August 2020, Toan told the Applicant that Toan had heard from an acquaintance that the Creditor was looking for the Applicant at Mong Cai. The Applicant left Vietnam on 1 September 2020 for China and from China fled to Hong Kong again on 3 September 2020. He did not run into the Creditor during the time when he was staying in Mong Cai. 13.The Applicant claimed protection on the ground that he would face serious harm by the Creditor if he were returned to Vietnam because he could not reply the Loan. Procedural history 14.The Applicant was arrested by the police on 19 September 2020. He claimed to have entered Hong Kong on 3 September 2020. By a written representation of 28 September 2020, the Applicant lodged the Claim. 15.The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:
16.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (the “Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 17.On 5 May 2022, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant named both the Board and the Director as proposed respondents in the Form 86. 18.The Applicant filed his supporting affirmation on 5 May 2022 (the “Supporting Affirmation”). 19.On 27 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that it was safe for him to return to his country and that he made the application by his own free will (the “Withdrawal Application”). The DOI Decision 20.After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by the Creditor upon his return. 21.The Director noted that the injuries he suffered from the Creditor were not serious. The Creditor and his associates had the opportunities to seriously harm or kill the Applicant when they visited his home but they refrained from doing so. This showed that the Creditor did not really intend to kill or seriously harm the Applicant. They only wanted to press him to repay the Loan. 22.On the issue of state protection, the Director after considering the relevant country of origin information (“COI”) found that there might be some inefficiency or corruption problems within the Vietnamese police but there were objective indications that the Vietnamese government took steps to improve the police force. The Director found that the Vietnamese government was able and willing to protect the rights of its citizens. 23.Although the Applicant asserted that the Vietnamese police would not give him any protection, this was unsupported by any evidence. He had never reported the attacks against him to the Vietnamese police. His dispute with the Creditor originated from the Loan and it had nothing to do with the police or the government authorities. There was no basis for him to claim that the police would acquiesce to the Creditor’s illegal actions or fail to protect the Applicant. 24.The Director further found that internal relocation would be viable. If the Applicant moved to Da Nang or Ho Chi Minh City, the Creditor would have great difficulty in locating him. After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to those areas and lead a normal life. 25.For the reasons set out in the DOI Decision, the Director rejected the Claim. The Board’s Decision 26.The Applicant did not submit any documentary evidence to the Board in support of the Appeal. 27.The Board after considering the Applicant’s claims including his written representation, his claim form, the record of his interview with the immigration officer, his notice of appeal and his oral evidence given at hearing before the Board, formed the view that the Applicant was not a witness of truth. The Board found the Applicant’s account not credible. The Board rejected his account as untruthful. 28.The Board noted that the Applicant did not seek protection during his first visit to Hong Kong in June 2019, despite his claim that he faced serious threats in Vietnam. When he entered Hong Kong again on 3 September 2020, he did not seek protection immediately but only did so 2 weeks later after his arrest. The Board found this to be inconsistent with his claim that the purpose of his second visit to Hong Kong was to seek protection (§27 of the Board’s Decision). 29.In the Board hearing, the Applicant also advanced a wholly different case about the threats in Vietnam. He told the Board that he borrowed money to gamble on football and owed money to a man named Pho (who was not the same person as the Creditor [§43 of the Board’s Decision]). He came to Hong Kong in June 2019 to avoid the gambling debt and voluntarily agreed to return to Vietnam because his wife told him the debt was paid. He took over the Business from his parents after returning to Vietnam in July 2019, after which he obtained the Loan from the Creditor to expand the Business (§39 of the Board’s Decision). 30.After he was deported back to Vietnam in July 2019, he did not return to his home in Haiphong because he discovered that his wife was forced to lie about the settlement of the gambling debt by Pho. The gambling debt was not in fact settled. He then stayed with his friend Toan for about one week in mid-August 2020 before eventually coming to Hong Kong (§41 of the Board’s Decision). 31.The Board found his testimony to be inconsistent with his claim to the Director. In his claim to the Director, he said he took over the Business in 2015 and that he stayed with Toan for more than one year. There was also no mention of any gambling debt in his claim to the Director. 32.The Board also found his claim to be internally inconsistent. If he did not return to his home after being deported to Vietnam in July 2019, he could not have taken over the Business from his parents (which were located near his home) (§43 of the Board’s Decision). 33.Another inconsistency noticed by the Board was related to the terms of the Loan. The Applicant testified in the hearing before the Board that the Loan was due in one year and the amount of monthly interest was VND 3 million. The interest was payable every three months. He only made one payment of VND 9 million before defaulting on the Loan. This was wholly different from his case to the Director, where he stated that the interest was VND 3 million every four months and that he made two interest payments. 34.The Board questioned him about the inconsistency between his testimony and his case to the Director but he was unable to satisfactorily explain the inconsistency. 35.The Board also found it inherently improbable that he did not flee his home after the first attack by the Creditor, as he claimed. The Applicant had no means to pay back the Loan and he could not do anything to convince the Creditor to give him a time extension. According to the Applicant, he simply sat idle at home knowing that the next attack by the Creditor would come. 36.For the reasons above, the Board found his evidence incredible. There was no reliable evidence to support his claim that he faced any of the proscribed risks of harm upon his return and his appeal was dismissed. 37.The Board went on to evaluate his claim on the basis that the facts he relied on were accepted. After taking into account all circumstances of the case including the duration, repetition and brutality of assaults, if any, the Board found that the gravity of alleged ill-treatment was low. 38.According to the Applicant, he did not see any immediate need to flee his home to avoid the Creditor. This showed that he did not possess any subjective fear of harm and the degree of risk of future harm from the Creditor was therefore found to be low. 39.The Board found that the real cause of the alleged ill-treatment that the Applicant might face arose solely from the financial dispute between the Applicant and the Creditor which was purely private in nature and not caused by any of the convention reasons, ie race, religion, nationality, membership of a particular social group or political opinion. No government officials or authorities were involved. 40.Regarding state protection, based on COI reports, the Board found that although there were reports on the Vietnamese police and the government being “corrupt”, steps had been taken to improve the situation. The Applicant chose not to report the unlawful acts of the Creditor to the police. There was no evidence to suggest that if he had done so, he would be denied protection. Reasonably sufficient state protection was found to be available to him. 41.The Board observed that the Applicant adduced no evidence to suggest that the Creditor acted in an official capacity in the alleged assaults or that the Vietnamese government acquiesced to the Creditor’s actions. 42.As for internal relocation, the Board found that the Applicant was not targeted by the Vietnamese government and there was no evidence to suggest that the Creditor had the resources to locate him in every part of Vietnam. The Applicant's assertion that the Creditor had extensive resources to trace and harm him wherever he lived in Vietnam was not substantiated by evidence. 43.Because of the above, the Board found that even if his factual assertions were accepted, his claim for protection under all of the applicable risks would still fail. 44.The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal. Legal principles applicable to judicial review 45.In a judicial review, the court does not step into the shoes of the decision makers. 46.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
47.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion 48.In the Form 86, the Applicant put forward the following grounds for his intended judicial review:
49.In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents. 50.In disputing the findings on availability of state protection and feasibility of internal relocation, the Applicant seeks to challenge the findings of fact of the Director and/or the Board which is not permissible in a judicial review. 51.In fact, the Director had in §12.3 and §§17-19 of the DOI Decision set out the reasons for his finding on the feasibility of internal relocation. In §§13-16 and §32 of the DOI Decision, the Director had set out the grounds for his findings of non-involvement of government officials to the alleged risks and the availability of state protection against the unlawful acts of the Creditor and his gangs. 52.The Board had also in §§46-48 of the Board’s Decision considered the Applicant’s claim of the power and network of the Creditor as well as the availability of state protection. After considering the Applicant’s case and the relevant COI, the Board found insufficient evidence to support the Applicant’s material assertions and the Board did not accept them. 53.State protection and internal relocation were further discussed in details in §§68-81 and §§105-110 of the Board’s Decision with reference to the relevant COI. 54.The Board found that the Applicant’s assertion that the Creditor was an influential person unsubstantiated and there was no indication that the local government tolerated or condoned the acts of the Creditor. The Board considered that the influence of the Creditor, if any, was minimal and localized at the Applicant’s home area. There was nothing to suggest that the Creditor had resources to hunt for the Applicant if the Applicant would move to other cities of Vietnam. 55.After considering the COI and all circumstances, the Board found that a reasonably effective criminal legal system and channels of complaint against corruption existed in Vietnam. Any police or government officials who had committed offences would be arrested, prosecuted and punished. The Board found no evidence suggesting that the whole government and the police of Vietnam would fail to discharge their duties properly should the Applicant bring the matters to the attention of the higher authorities. The Board was of the view that reasonably sufficient state protection would be available to the Applicant in Vietnam. 56.No proper ground for his intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. The Applicant also provided no particulars or specifics on matters stated in the Form 86 and referred to in §48 above. They were only vague and bare assertions. 57.Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am 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 very high standards of fairness. 58.The Board found that the Applicant’s claims not credible for reasons set out in §§28-45 of the Board’s Decision. The Board did not accept that the Applicant had been ill-treated as alleged. There was no reliable evidence that the alleged acts of torture had inflicted on the Applicant pain or suffering of certain severity or gravity. Returning the Applicant to Vietnam would not expose him to a real risk that the Applicant would be ill-treated or at risk of arbitrary deprivation of life. 59.It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such findings involved error of law, procedural unfairness and irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable. The Withdrawal Application 60.The Applicant subsequently filed the Withdrawal Application on 27 June 2024 stating that it was safe for him to return to his country and he wanted to return to his country as soon as possible. 61.The Applicant further confirmed that he made the Withdrawal Application out of his own free will. 62.Apart from the Withdrawal Application, there is nothing outstanding in this action. 63.The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:
Conclusion 64.In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss his application for leave to apply for judicial review. Dated the 23rd day August of 2024.
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
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