NGUYEN THI TUAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 563/2021

[2022] HKCA 739

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 563 OF 2021

(ON APPEAL FROM HCAL NO 227 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 29 November 2021, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 13 December 2021.

2.  The applicant is a national of Vietnam. She is 61 years old. She entered Hong Kong illegally on 7 May 2015. She surrendered to the Immigration Department on 12 May 2015 and lodged a non-refoulement claim on 30 November 2015 on the basis that she would be harmed or killed by her creditor, his brother and followers.

The Director’s decision

3.  By a Notice of Decision dated 17 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  Taking into account the low intensity of past ill-treatment from the applicant’s enemies, the Director assessed that the level of risk of harm is low. Despite the death threat, the applicant’s enemies did not make any fatal attack upon the applicant. The previous harm inflicted upon the applicant, whether physical or mental, had not attained the requisite minimum level of severity. The Director also found that the applicant’s problem is just a private dispute without any involvement of the Vietnamese government, political parties or organizations. In addition, the Director considered that the availability of state protection and internal relocation alternatives in Vietnam further lowers or negates the perceived risk.

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 29 November 2018. As the applicant’s case is unsupported by credible evidence and is inconsistent and lacking in details, the Board did not accept her case that she had borrowed money from the creditor or that she had been ill-treated. The Board assessed that the applicant’s fear is not well-founded. In any event, the Board found that reasonably sufficient state protection will be available to the applicant in Vietnam. The Board further considered that the influence and power of the creditor, if any, is localized at the applicant’s home area and it is not unduly harsh for her to relocate to other cities in Vietnam which would further lower or negate the perceived risk. Therefore, the Board rejected the appeal on 17 January 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 24 January 2019 to seek leave to apply for judicial review against the decision of the Board. She only reiterated the risk of harm she may face in Vietnam in her supporting affirmation without putting forward any grounds for her intended challenge against the Board’s decision.

The judge’s decision

7.  As the applicant did not request for an oral hearing, DHCJ K W Lung considered the leave application on paper. The judge considered that the applicant does not have any valid reason to challenge the Board’s decision. He held that there is no error of law or procedural unfairness in the Board’s findings and concluded that there is no realistic prospect of success in the applicant’s proposed judicial review. Therefore, the judge dismissed the leave application on 29 November 2021.

Grounds of appeal

8.  The applicant stated the following grounds of appeal in her Notice of Appeal filed on 13 December 2021:

(1)  the gravity of her circumstances has not been weighed or realized by the Director and the Board; and

(2)  she should be given an opportunity to plead her case properly.

Non-compliance with directions for lodging skeleton argument

9.  Directions were given by the Registrar of Civil Appeals on 20 January 2022 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for this appeal.

10.  The appeal was scheduled to be heard on 22 March 2022. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 22 February 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the applicant by letter dated 2 March 2022 that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal 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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

13.  The applicant’s grounds were not raised in her previous leave application. An appeal is not the occasion for an applicant to introduce new grounds[6]. In any event, the applicant’s grounds in this appeal are just bare assertions without particulars, elaboration or evidence in support. In particular, the applicant was given opportunities to plead her case at the interview and the oral hearing before the Immigration officer and the Board. The Director and the Board had given detailed analysis and explanation for their findings and their decisions are well founded. Besides, the applicant did not adduce any evidence to refute the Board’s findings.

14.  In addition, the applicant did not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for her to bring judicial review against the Board’s decision. She failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  As there is no merit in the applicant’s contentions, we order that this appeal should be dismissed.