RE NGUYEN THI KIM HOANG

CACV 14/2023

[2023] HKCA 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2023

(ON APPEAL FROM HCAL 233 OF 2019)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant against the order made by Deputy High Court Judge K W Lung (“Judge”) on 6 January 2023 (“Judge’s Decision”) refusing her leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 19 December 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 9 November 2016 (“Director’s Decision”).

Bases and allegations in support of NRF Claim

2.  The bases of the NRF Claim made by the applicant, a national of Vietnam now aged about 44, are fears of being (1) harmed or even killed by a loan shark and a gangster surnamed Long (“Long”) due to her failure to fully repay her late mother’s debt; and (2) oppressed by the Vietnamese authorities due to her Christian faith.

3.  The circumstances giving rise to such alleged fears have been set out in detail in paragraph 8 of the Director’s Decision and paragraphs 29 to 53 of the Board’s Decision and in gist in [5] of the Judge’s Decision embodied in the Form CALL-1 dated 6 January 2023, [2023] HKCFI 74 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant was baptised in Vietnam in September 2006.

(2)  She had been arrested and detained by the local police on numerous occasions between February 2007 and November 2014 for attending Christian gatherings. She would be released on payment of a fine. 

(3)  In some instances, the police had used physical force against her.  The injuries would usually heal in 3 or 4 days.  

(4)  In 2009, the applicant’s mother borrowed VND600 million (“Loan”) from Long, at a monthly interest of VND50 million.

(5)  The applicant lost her father and brother in a car accident in 2010.  Her mother then died of cancer in July 2012. Within a few months after her mother’s death, Long began to pester the applicant, being the only living member of her family, to repay the whole principal and the accrued interest of the Loan.

(6)  Long and his men would go to the applicant’s residence nearly daily to chase for payment.  The applicant refused to repay the Loan by acting as a drug courier for Long.  Long once hit the applicant on her head with a brick.  His men later beat the applicant up on another occasion. 

(7)  Near the end of 2012, the applicant sold the family home and the items inside for more than VND1 billion.  After repayment her mother’s debt to the bank, she offered to pay Long VND600 million, but Long demanded for VND2 billion.  As the applicant did not have so much money, Long’s men physically assaulted her again. However, the applicant managed to escape from District 1 to District 4 of Ho Chi Ming City.

(8)  It took the applicant about 10 days to recover from the injuries sustained in each of these incidents.

(9)  The applicant once reported Long’s attack to the police but they did not intervene.

(10)  She stayed in a boarding house in District 4 without mishap from the end of 2012 to November 2014, during which she had made 3 overseas trips to Thailand, Singapore and Malaysia respectively.

Overstaying in Hong Kong and lodgment of NRF Claim

5.  The applicant last arrived in Hong Kong on 15 November 2014 as a visitor with permission to stay until 22 November 2014.  However, the applicant did not leave.  She surrendered to the Immigration Department on 25 November 2014 and raised the NRF Claim by written representation on the same day. 

6.  The applicant completed and lodged a non-refoulement claim form dated 1 September 2016 (“NCF”) and later submitted supplementary information on 21 September and 7 October 2016.  

Director’s Decision

7.  In addition to the NCF and the said supplementary information, in processing the NRF Claim, the Director’s representative(s) conducted screening interviews with the applicant on 30 September and 31 October 2016.  The applicant then had legal advice and representation from the Duty Lawyer Service.

8.  The Director found the NRF Claim unsubstantiated under all applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

Appeal to Board and Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.

10.  The Board conducted a rehearing of the NRF Claim on 19 November 2018, at which the applicant testified before, and answered questions by, the Board through a Vietnamese interpreter.

11.  The Board dismissed the appeal on all 4 grounds for non-refoulement protection for the following reasons.

12.  The Board did not see any real risk of harm in the event of refoulement.  There were material inconsistencies in the applicant’s account on key facts including: the particulars of the Loan, the timing of her mother’s death, and the timing and frequency of her contacts with Long after her mother’s death.  As for the risk of persecution arising from the applicant’s religious faith, the Board found contradictions in the applicant’s evidence as to the timing of her arrests and length of detentions due to her Christian faith.  The applicant’s description of her encounters with the police was vague and limited.  Anyway, such evidence did not suggest that the police were specifically targeting her due to her religion.

Application for leave for judicial review and Judge’s Decision

13.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 233/2019 on 7 January 2019 and the supporting affirmation filed on the same day, the applicant sought leave to apply for judicial review of the Board’s Decision, without stating any grounds for the proposed judicial review.

14.  The applicant did not ask for an oral hearing.  After considering the papers before him, the Judge refused to grant leave to apply for judicial review of the Board’s Decision for the reasons set out at [15] – [20] of the Form CALL-1:

“15. 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).

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

17. 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.’

18. There is no valid ground to challenge the Board’s Decision.

19. 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.

20. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Appeal to Court of Appeal - grounds of appeal and submission

15.  By the notice of appeal filed herein on 18 January 2023, the applicant appealed against the refusal of leave for judicial review, without stating any grounds of appeal, properly so called.

16.  By the written submission lodged on 28 February 2023, the applicant referred, without any particulars, to failure by both the Director and the Board to comply with the high standards of fairness required in the determination of non-refoulement claims in that they did not properly inquire into the risk of harms feared by the applicant or the intention or ability of the Vietnamese authorities to protect her.  The same criticism was also made in respect of the Judge’s Decision, likewise without any or any particulars in support.

17.  The applicant appeared in person at the hearing of the appeal on 18 April 2023.  She had nothing to add in further support of her case.

Discussion

Court of First Instance’s role in judicial review in non-refoulement claim

18.  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.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

19.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst at [14(2) & (4)].

Appeal has no merit

20.  The question whether the applicant would be at risk of life or torture if she is refouled to Vietnam is a question of fact within the province of the Board (after the Director).  Her much-repeated bare assertion that she would be in danger from Long or the police if she should return to Vietnam is inconsistent with the findings made at both stages of the unified screening mechanism, which findings were supported by detailed reasons provided in the Board’s Decision (and the Director’s Decision).

21.  As noted in [13] and [14] above, the applicant had not in the Form 86 or the supporting affirmation before the Judge identified any error of law, procedural unfairness or irrationality on the part of the Board in assessing the risk of harm against her.  The application for leave to apply for judicial review of the Board’s Decision was therefore doomed.  The Judge did not err in refusing leave. 

22.  Likewise, the applicant has not in the notice of appeal or the submission before us (whether written or oral) articulated any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

23.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

24.  For these reasons, we see no basis to interfere with the Judge’s Decision.  Accordingly, we dismiss the appeal.

[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.

[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.