RE DOAN VAN VINH

CACV 43/2023, [2024] HKCA 279

On Appeal From [2023] HKCFI 282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 43 OF 2023

(ON APPEAL FROM HCAL NO. 63 OF 2019)

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Judgment

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Hon Cheung JA (giving the Judgment of the Court) :

I. The appeal

1.  On 2 February 2023, Deputy High Court Judge K. W. Lung refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (‘the Board’) dated 10 December 2018 concerning his non‑refoulement protection claim (‘the Board’s Decision’).   The applicant filed a notice of appeal against the Judge’s decision on 14 February 2023.

II.     Background

2.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 19 November 2017 and was arrested on 21 November 2017 for using a forged identity card and taking up employment illegally.  He was sentenced to 15 months’ imprisonment.   He lodged a non-refoulement claim on 10 May 2018.   His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor, Do Trong Hai (‘DTH’), as he was unable to repay his debt.

III.   The Director’s Decision

3.  By a notice of decision dated 16 August 2018, the Director of Immigration (‘the Director’) rejected the applicant’s non‑refoulement claim on torture risk, BOR 2 risk, BOR 3 risk and persecution risk.

4.  The Director assessed that the risk of harm was low as the alleged past ill-treatments had not attained the prescribed minimum level of severity.   The Director considered it to be a private monetary dispute between creditor and debtor, and that the actions of DTH and his associates have not shown a real intention to seriously harm the applicant but only shown an intention to chase for repayment.   There is no evidence to show that the Vietnamese government had any involvement in the alleged conduct complained of, nor that it was indifferent to or encouraged such alleged conduct.   Moreover, the Director held that the availability of state protection and viable and reasonable internal relocation alternatives, further lowers or negates the perceived risk.

IV.    The Board’s Decision

5.  The applicant’s appeal against the Director’s Decision was heard before the Board on 8 November 2018, at which the applicant had given oral evidence.   The Board found the applicant’s account to be untruthful because of significant inconsistencies in his evidence and his failure to provide satisfactory explanations for the same.   It also took into account the applicant’s use of a forged identity card and illegal employment in Hong Kong.   Importantly, the Board concluded that the claims put forward by the applicant could not be given credence and did not accept that the applicant had borrowed money from DTH.   As a consequence, the Board found the applicant’s story of harm and ill‑treatment from DTH to be fabrications.

6.  In addition, based on the country of origin information (‘COI’), the Board also found that there is reasonable state protection available to the applicant in Vietnam, but the applicant has never sought protection from his own state.  There is no evidence to show that the Vietnamese government is unable or unwilling to give protection to him. Further, the Board found that internal relocation in Vietnam is an available alternative, and that it is not unreasonable or unduly harsh for the applicant to relocate internally to a place of the applicant’s choice in Vietnam.

7.  Thus, the Board concluded that the applicant failed to establish his claim and rejected the appeal on 10 December 2018.

V.     The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 8 January 2019 to seek leave to apply for judicial review against the Board’s Decision.   In his supporting affirmation, the applicant only stated that he did not agree with the Board’s Decision, and reiterated that his life is still in danger in his home country and that he could not go back.   Apart from the aforesaid, the applicant did not advance any other grounds for his intended challenge against the Board’s Decision.

VI.     The Judge’s decision

9.  The Judge dealt with the application on paper as the applicant did not request for an oral hearing.   The Judge did not find any error of law or procedural unfairness in the Board’s Decision, nor the findings of the Board to be Wednesbury unreasonable or irrational in any respect.   In the circumstances, the Judge held that there was no valid reason to challenge the Board’s Decision, and that the applicant had failed to show any realistic prospect of success in his intended judicial review.   The leave application was thus refused on 2 February 2023.

VII.   Grounds of appeal

10.  In the notice of appeal and his affirmation filed on 14 February 2023, the applicant stated his grounds of appeal as follows :

1)  If he returns to Vietnam, his life would be seriously threatened or he would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong, most of them are cruel and violent.  They disregard the law and are willing to kill people.  He had previously been assaulted by DTH and it is possible for DTH and his associates to do so again.  He may be tortured, beaten, or killed by these gangsters.

2)  The Director’s suggestion on internal relocation to avoid DTH is completely unfeasible as he would face many difficulties and obstacles.  He described his health as ‘not good’ and that he is not an active person, and asserted that he may be disadvantaged in the labour market as a result.

3)  With the nationwide social network of gangsters and their clandestine connections with corrupt people in the government and police, it is possible for DTH and gangsters to find out his new residence in Vietnam.

4)  The Director and the Board ‘did not see the grounds to reserve their decisions’. 

11.  The applicant has given written consent to the disposal of his appeal on paper without an oral hearing.   Despite directions given by the Registrar of Civil Appeals on 14 February 2023 requiring the applicant to lodge written submissions on or before 28 February 2023, the applicant did not lodge any written submissions in this appeal.

VIII.  Legal principles

12.  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], of which the following are particularly apposite to the present case :

1)  The assessment of evidence, COI materials, risk of harm, state protection, and viability of internal relocation are primarily within the province of the Board (and the Director), as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness, or irrationality in the decision of the Board [14(1)].

2)  An appeal against the refusal of leave by a Judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge or for running arguments which could and should have been raised but were not raised before the Judge [14(2)].

3)  In the determination of an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong [14(2)].

4)  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 this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review [14(6)].

IX.     Our view

13.  By Ground 1, the applicant only seeks to regurgitate the arguments advanced and rejected by the Judge, namely, that his life is still in danger in his home country and that he could not go back.  As mentioned, an appeal against the refusal of leave by a Judge in the Court of First Instance is not the occasion for this.

14.  In any event, as mentioned above, the Board did not accept the applicant’s claim that he had borrowed money from DTH, and had found the applicant’s story of harm and ill‑treatment from DTH to be fabrications.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  We do not see any valid basis (namely, on the ground of errors of law, procedural unfairness, or irrationality in the Board’s Decision) for the Court to intervene.

15.  Grounds 2-4 are directed at the Board’s Decision but were not raised in his application before the Court of First Instance.  An appeal, however, is not the occasion for an applicant to introduce new grounds for judicial review after the original grounds failed at the Court below.   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.

16.  Neither the notice of appeal nor affirmation filed in support has pointed to any error in the Judge’s decision or the reasons given.  As no viable ground is put forward to reverse the Judge’s decision, the appeal must be dismissed.

17.  In any event, the assessment of evidence, COI materials, and viability of internal relocation are primarily within the province of the Board.  We do not see from Grounds 2-4 any errors of law, procedural unfairness, or irrationality in the Board’s Decision, particularly in view of the Board’s finding that the applicant’s story of harm and ill‑treatment from DTH were fabrications (and our conclusion on Ground 1).

18.  For the above reasons, this appeal is devoid of merit and we dismiss it accordingly.