RE NGUYEN THI HA

CACV 294/2023, [2024] HKCA 325

On Appeal From [2023] HKCFI 2227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 294 OF 2023

(ON APPEAL FROM HCAL 1190 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 11 September 2023 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 29 April 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 November 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 2 October 2015, and was arrested by the police on 5 October 2015. She thereafter raised a non-refoulement claim on 5 April 2017.

3.  The applicant’s claim was based on her fear of being harmed or killed by her creditor, one Hoang Van Khai (“Hoang”), said to be a renowned loan shark in the locality of Hai Phong where she and her husband lived after their marriage, by reason of her inability to repay a loan, jointly obtained by her and her husband, of 200 million Vietnamese dongs at an interest rate of 360% per annum. The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1] and the Board’s Decision at [30] – [41].

4.  By a Notice of Decision dated 28 November 2017 i.e. the Director’s Decision, the Director rejected the applicant’s claim on all applicable grounds. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was fixed on 27 February 2019 and at which the applicant appeared in person. The Board found, on the evidence, that Hoang had no intention to materialise the threats to seriously harm or kill her and, as at the date of the hearing, it was unlikely that the applicant would face any real or substantial risk of harm if refouled. In any event, the Board was of the view that state protection and suitable options of internal relocation within Vietnam (such as to Hanoi, Ho Chi Minh City or Da Nang) would be available to the applicant.

6.  The applicant’s appeal was dismissed by the Board’s Decision dated 29 April 2019.

The Judge’s decision

7.  The applicant filed a Form 86 dated 3 May 2019 seeking to judicially review the Board’s Decision but did not set out any grounds for review.

8.  In her supporting affirmation filed on the same date, the applicant merely stated that she would face a genuine and substantial risk of being “subject to torture or even killed by my creditor and his men since I am insolvent” if she was refouled.

9.  The applicant did not ask for an oral hearing for the leave application before the Judge. Accordingly it was determined on paper.

10.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review. The Judge gave the following reasons at [14] to [19] of the CALL-1 Form:

“14. 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).

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

16. 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.’

17. The applicant has raised no valid ground to challenge the Board’s Decision.

18. 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.

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

Grounds for appeal

11.  In the Notice of Appeal dated 19 September 2023, the applicant advanced the following ground of appeal:

“…the grounds of this appeal are that the gravity of my circumstances have noted [sic] been weighed or realized by both putative Respondents while considering my non–refoulement claim. I should be given an opportunity to plead my case properly.”

12.  In her supporting affirmation of the same date, the applicant contended, without elaboration, that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and that she “was informed that [the Director and the Board] did not see the grounds to reverse their decisions”.

13.  In her skeleton arguments dated 29 February 2024, the applicant advanced a number of grounds of appeal which have not been stated in her Notice of Appeal or her affirmation. Essentially, the applicant submits the Board (i) had misplaced its reliance on the irrelevant matter that Hoang only wanted repayment without paying due regard to the relevant matter that the applicant did suffer grievous bodily harm and mental suffering at the hands of Hoang before fleeing Vietnam – Ground 1; (ii) had failed to apply the high standards of fairness which would require the applicant to be given an opportunity to be heard orally or further in writing before a decision is made on the claim – Ground 2; (iii) had failed to critically and independently evaluate both the credibility and veracity of the COI materials such as the quoted e-newspaper with a view to achieving a just decision – Ground 3; (iv) had acted irrationally – Ground 4; and (v) had wrongly concluded that the applicant could reasonably relocate to other parts of Vietnam without taking into account any undue hardship to her following such relocation – Ground 5.

14.  We heard the appeal on 9 April 2024. The applicant appeared at the hearing but had nothing material to add to the materials submitted for the purpose of this appeal.

Discussion

15.  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].

16.  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 the decision of the Board afresh as if it is a fresh application for judicial review.

17.  As can be seen from the above, the applicant has failed in her Notice of Appeal, affirmation and skeleton arguments to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. On this basis alone, her appeal must fail.

18.  In her application to the Judge, apart from a bare assertion of the risk of being subject to torture or even being killed, the applicant had failed to provide particulars as to any respects in which the Board was acting illegally or unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

19.  As this court has repeatedly held, an application for leave to apply for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board. It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return. The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established: See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163. The Judge considered the decisions of both the Director and the Board and found no basis for intervening. In our view, he was clearly correct to do so.

20.  In any event, we are not persuaded by the applicant’s complaint that the Board had failed to duly weigh or realise the gravity of her circumstances should she be refouled.

21.  There is also no merit in the applicant’s complaint that she had not been given an opportunity to “plead her case properly”. In this connection, we note from [2] of the Board’s Decision that at the hearing before the Board, she confirmed that apart from the written materials before the Board eg her non-refoulement claim form and the transcript of her evidence before the immigration officer as well as her further evidence on oath, the applicant had no other information or documents to produce for the Board’s consideration.

22.  For the above reasons, there is no merit in the appeal and we dismiss it accordingly.