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CACV 535/2021
[2022] HKCA 738
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 535 OF 2021
(ON APPEAL FROM HCAL NO 1270 OF 2018)
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| BETWEEN |
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Trinh Thi Ly |
Applicant |
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Torture Claims Appeal Board / Non‑refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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Before: Hon Kwan VP and S T Poon J in Court
Date of Judgment: 27 May 2022
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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 22 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 1 December 2021.
2. The applicant is a national of Vietnam. She is 37 years old. She entered Hong Kong illegally on 14 December 2014. She surrendered to the Immigration Department and lodged a non-refoulement claim on 16 December 2014 on the basis that she would be harmed or killed by her creditors.
The Director’s decision
3. By a Notice of Decision dated 9 March 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 and frequency of past ill-treatment from the creditors, the Director assessed that the level of risk of harm from the creditors is low. In particular, the creditors had only made verbal threats and the applicant had never been physically harmed in the incidents. There is also no evidence to show that the applicant had to seek physical or mental treatment because of the incidents. The Director therefore considered that the harm, whether physical or mental, inflicted upon the applicant by the creditors had not attained the requisite minimum level of severity. Moreover, the Director found that the applicant’s problem is entirely a private dispute without any involvement of the Vietnamese government. The Director concluded 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 9 May 2018. As the applicant’s case is unsupported by evidence, and is contradictory and inconsistent, the Board did not accept her case that she had borrowed money from the moneylenders or that she had been threatened by them in her home village in Vietnam. The Board held that the applicant failed to show that she is entitled to non-refoulement protection in Hong Kong on any of the applicable grounds and rejected the appeal on 21 May 2018.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 4 July 2018 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. DHCJ K W Lung considered the leave application on paper[6]. The judge found that the Board had conducted a rather comprehensive assessment of the applicant’s evidence and had given reasons for its findings. 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 22 November 2021.
Grounds of appeal
8. The applicant stated the following grounds of appeal in her Notice of Appeal filed on 1 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 in this appeal are just bare assertions without particulars, elaboration or evidence in support. She was given opportunities to plead her case at the interview and 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. In particular, the applicant did not adduce any evidence to refute the Board’s findings.
14. The applicant has 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 this appeal, we make an order that the appeal be dismissed.
(Susan Kwan)
Vice President
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(S T Poon)
Judge of the Court of
First Instance
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The Applicant (Appellant), acting in person
[1] [2021] HKCFI 3447
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] This refers to the 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.
[6] The applicant did not request for an oral hearing in the Form 86 or supporting affirmation. In §3 of Call-1 form, the judge stated that the applicant “requested an oral hearing” and “Pursuant to Order 53 rule 3(3) of the Rules of the High Court, a hearing has therefore been fixed for her.” This statement would appear to be made in error. The Court record showed that no hearing was fixed for the leave application and the first page of call-1 form and the order made by the judge indicated that the judge had considered the application on paper.
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