RE NGUYEN THANH TUNG

CACV 162/2023, [2023] HKCA 1077

On Appeal From [2023] HKCFI 1266

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 162 OF 2023

(ON APPEAL FROM HCAL NO 799 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 16 May 2023, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2023] HKCFI 1266).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 14 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 23 July 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  On 29 May 2023, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 22 March 2017 and surrendered himself to the Immigration Department on the next day.  On 23 March 2017, he raised a non-refoulement claim on the basis that if returned to Vietnam, he would be harmed or killed by his creditor Tran Long (“Tran”)  over his unpaid debts.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.

5.  By their decisions respectively dated 23 July 2018 and 14 February 2019, the Director and the Board dismissed his non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4].  In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.  In particular, in dismissing his appeal against the Director’s Decision, the Board accepted the applicant’s claim that there was an outstanding loan and he had unpleasant encounters with Tran.  However, the applicant was only directly involved in one incident with the others basing on hearsay information and in any event, he did not suffer any serious injuries in the incident.  Even taking his claim to the highest, the loan dispute was a private dispute without state involvement and state protection would be available to him.  Accordingly, his appeal was dismissed.

The Leave Decision

6.  On 22 March 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision. No ground of review was given by the applicant in his Form 86.  In his supporting affirmation, he merely asserted that if refouled to Vietnam, his life would be in danger as he was afraid that his creditor and his men would inflict serious harm on him or even kill him.  As the applicant did not request for any oral hearing, his application was considered on paper.

7.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [13] - [19] of the Leave Decision:

“13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

16.  The Board had assessed his evidence and, for the reasons it had given, found that the applicant is not subjected to any real risk as he alleged if he returns to Vietnam as state protection and internal relocation are available options for him. The reasons stated in paragraph 12, supra are not valid to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

The Appeal

8.  On 29 May 2023, the applicant filed a Notice of Appeal and a supporting affirmation to appeal against the Leave Decision.  In his Notice of Appeal, he stated that the gangsters and creditors disregarded the law and that he would be tortured, beaten or even killed.  He also claimed that it would be infeasible for him to internally relocate as he was not an active person and might be disadvantaged in the labour market.  He further claimed that it would be very dangerous for him to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus.

9.  In his supporting affirmation, he alleged that there was “a good ground of appeal that was not necessarily considered at stage of applying for leave for Judicial Review” and that the Director and the Board “did not see the grounds to reserve their decisions”.  However, he failed to specify what those grounds as claimed were.

10.  Contrary to the directions of the Registrar of Civil Appeals dated 29 May 2023, the applicant failed to lodge any written submissions.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

13.  In our view, the applicant’s allegations have no substance.  It is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision.  His complaints are also all general and vague without specific particulars or evidence in support.  They therefore do not constitute proper grounds of appeal.  See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, he did not identify any specific error in the Leave Decision.  This appeal must fail on this alone.

14.  Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

15.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.