NGO THI THU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 224/2023, [2024] HKCA 607

On Appeal From [2023] HKCFI 1716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 224 OF 2023

(ON APPEAL FROM HCAL NO 1012 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 3 July 2023[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 4 April 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 12 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1972.  She claimed to have entered Hong Kong illegally via Mainland China on 9 September 2015.  On 10 September 2015, the applicant surrendered to the Immigration Department and submitted a written signification indicating her intention to lodge a non-refoulement claim in Hong Kong on the same date.  The applicant’s claim was made on the basis that if she returned to Vietnam, her creditor would harm or kill her due to her inability to repay the loan.  The factual background of the applicant’s claim was set out at [4] to [9] of the Board’s decision.

3.  By notice of decision dated 12 February 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against her.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  The Board found it appropriate to determine the case by paper disposal without an oral hearing.  It assessed the applicant’s claim based on the events as alleged by her.

5.  The Board proceeded to consider the risk of harm faced by the applicant if she was refouled to Vietnam.  It found there was in fact no real risk of harm if the applicant returned to Vietnam, because her risk of harm did not reach the requisite level, the intention of her creditor was to force her to repay the loan quickly, this was a personal loan dispute with no state involvement, and there was no evidence to show alleged state acquiescence.  According to country of origin information, the Board found that there was no evidence to suggest that the state would refuse to protect its citizens and that internal relocation to larger, densely populated cities in Vietnam was viable for the applicant who had received 7 years of formal education and 28 years of work experience.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 4 April 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds.

The Judge’s decisions in the court below

7.  On 15 April 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  She did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, she simply repeated the basis of her claim for non-refoulement protection and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 3 July 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review on the basis that the role of the Court in judicial review is supervisory and must not usurp the fact finding power vested in the Director and the Board.  The Judge did not find any error of law or procedural unfairness in the Board’s decision.  The findings of the Board are not challengeable as Wednesbury unreasonable or irrational and the applicant failed to show that she has any realistic prospect of success in the proposed judicial review.

Appeal to this Court

9.  On 18 July 2023, the applicant filed her Notice of Appeal against the Judge’s decision.  Her stated grounds of appeal were, essentially, that she would be beaten or even killed by her creditor and gangsters if she returned, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam, and that the Director failed to consider her human rights.

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has not lodged any written submissions. 

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because this was a loan dispute of a personal nature without state involvement, the intention of the creditor was to pressure the applicant to repay the loan, and the applicant’s risk of harm did not reach the requisite level.  Moreover, the Board found that internal relocation was viable to further protect the applicant from her alleged risk of harm.   These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director without any particulars. They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.