Vu Van Sang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1935/2019

[2024] HKCFI 2599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1935 of 2019

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:

The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 July 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 December 2017 (the “Notice”) refusing his application for non-refoulement protection.

2.The Applicant had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered his application may be justly determined on paper without an oral hearing.

3.The Applicant is a Vietnamese national, now aged 39. He entered Hong Kong on 29 January 2017 illegally. He was arrested by the police two days later and referred to the Immigration Department. On 10 February 2017, 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[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply for judicial review of that Decision.

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 claims that he would be harmed or even killed by a moneylender (the “moneylender”) upon his return to Vietnam for being unable to repay a loan borrowed from the moneylender.

6.The Applicant lived in Hai Phong, Vietnam. He had ten years’ of education. He had worked for two years as a welder and ten years as a farmer. In about January 2013, he started his business selling seafood. In April/May 2014, he borrowed 950 million Vietnamese Dong (VND) from the moneylender at a monthly interest rate of 45 million VND. The moneylender was a local loan shark with triad background. The Applicant was not able to pay the monthly interest since September 2016 because of a pitfall in his business.

7.In October 2016, the moneylender together with more than ten subordinates armed with swords and metal rods came to the Applicant’s home to demand payment. They beat the Applicant on his head with metal rods causing him bleeding on his head. The Applicant fled.

8.The Applicant hid in his neighbour’s place. He treated himself with dressings and painkiller. It took him 20 days to recover. He did not report the incident to the police because he feared revenge by the moneylender. He stayed at different places to avoid the moneylender. Since January 2017, he lived in a friend’s place in Mong Cai. He did not believe the authorities would protect him because they were corrupt and he had no money to bribe them. He did not believe internal relocation was a viable option because the moneylender could locate him throughout Vietnam with his wide network and triad background. Eventually, through his friend’s arrangement, he sneaked into Dongxing, China. Then he sneaked into Hong Kong from Shenzhen on 29 January 2017.

9.In the months that followed the attack, the moneylender frequently telephoned the Applicant at his home. The calls were answered by the Applicant’s parents. He told the Applicant’s parents that he will kill the Applicant if he failed to repay the loan.

Finding of the Board

10.The Applicant testified before the Board. The Board found serious discrepancies between his evidence in his NCF and his testimony. His explanation for the discrepancies was that he was confused about the dates, but confirmed that his evidence in the NCF was correct and his testimony was not.

11.In his NCF he said he moved to Mong Cai in January 2017[5]; but in his testimony, he said he moved to Mong Cai in July 2015. His explanation for the discrepancy was that he first went to Mong Cai in July 2015 and then traveled to and from Hai Phong for more than 10 times in the following 15 months and that between October 2016 and January 2017 he stayed in Mong Cai until his departure for China in early 2017. While that explained the discrepancy, it fatally destroyed the credibility of his core of the case, ie the threat and assault by his moneylender which allegedly took place in October 2016 a year before he first went to Mong Cai.

12.The discrepancy also cast serious doubts on the veracity of the loan from the moneylender. In his NCF, the Applicant said he was unable to pay interest since September 2016, ie after having so paied interest for about 27 months. According to his explanation he gave in his testimony, he fled to Mong Cai in July 2015, ie he had only paid interest for five months. He could be reasonably excused for having mistaken about the dates, but not about such a difference in the duration of payment of interest.

13.Regardless of the incredibility of his case arising from the above discrepancy, the Board also considered his account inherently improbable. Admittedly, the Applicant had limited experience in trading of seafood and he knew the moneylender was a loan shark and a triad. Under the circumstances, the Board found it inherently improbable that he would have borrowed 950 million VND at such an exorbitant monthly interest of 45 million VND, ie 56% per annum from a loan shark and a triad.

14.The Board rejected his evidence as incredible. Having so rejected his evidence, there was no factual or evidential basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. However, the Board went on and assessed his claim on the basis of his evidence as asserted in his NCF which he confirmed was correct. It found he was not entitled as a matter of law to protection under any of the four applicable grounds.

15.In respect of the Torture Risk ground, the Board found that the Applicant was not targeted by the state or its agents and that the harm or ill-treatment were not acts instigated or acquiesced by the state or a public body.

16.In respect of BOR 3 Risk ground, the Board found that the ill-treatment were inflicted by the moneylender for the purpose of warning the Applicant and coercing him to pay. The moneylender had no intention to kill him for if he did he could never recover any loan. Further, on the basis of authoritative and credible country of origin information, the Board was satisfied that adequate state protection would be available to the Applicant on his return to Vietnam and that internal relocation would also viable. Hence, the Board found there was insufficient evidence to establish any foreseeable and real risk of severe harm on the Applicant upon his refoulement.

17.In respect of Persecution Risk ground, the Board found the dispute between the Applicant and his moneylender was a personal one and that the ill-treatment inflicted on the Applicant was not on account of any of the reasons under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

18.In respect of BOR 2 Risk ground, for the same reasons as mentioned in Paragraph 16 the Board found it unlikely that the moneylender would kill or seriously harm the Applicant on his return to Vietnam and, in any event, adequate state protection and internal relocation are viable options to prevent or minimise or avoid the risk of harm.

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[6].

Grounds for judicial review

20.The Applicant did not put forward any grounds of application for judicial review in his Form 86. In his supporting affirmation, he said he does not agree with the Decision of the Board and annexed a copy of the Decision. In effect, he is seeking to challenge the Board’s finding of fact that he had failed to prove the factual basis in support of his claim to non-refoulement protection. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, 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.

Discussion

21.Having rigorously examined the Director’s Notice of Decision, the Board’s Decision, the Applicant’s grounds for application and the evidence with anxious scrutiny, the 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 and quoted relevant precedents in support of its Decision. 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 decisions in the Notice. It correctly identified the factual and legal issues raised by the claims.

22.The Applicant’s claim is founded on his fear of being harmed or killed by his moneylender. The Board found the Applicant incredible, rejected his evidence and found there was no factual basis to support his claim for non-refoulement protection under any of the grounds under the USM. However, it went further and assessed his claim on the basis of the case as he asserted. The Applicant could not have any complaint against the Board’s approach. It was also on the basis of those facts that the Board found as a matter of law he was not entitled to protection. Therefore, the Applicant failed to discharge his burden of proving his fears and risks. The Board’s Decision is a finding of fact which is 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. There are no errors of law or procedural unfairness in its Decision. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. Having considered his grounds for application, the Court is satisfied that 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, the Applicant’s application for leave to apply for judicial review is refused.

Dated 27^th day of September 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