RE NGUYEN HAI AU

CACV 489/2020

[2021] HKCA 1162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 489 OF 2020

(ON APPEAL FROM HCAL NO 541 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”)  set out in the Form CALL-1 dated 14 September 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”)  [2020] HKCFI 2296.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 29 March 2018 (“the Board’s Decision”)  and the decision of the Director of Immigration (“the Director”)  dated 31 May 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  The applicant filed his Notice of Appeal on 21 September 2020.  On the same date, he consented to have this application to be disposed of on paper without an oral hearing.  This is our judgment.

A.  Background

4.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 7 August 2016 and was arrested on the same date.  He lodged a non-refoulement claim on 5 September 2016.

5.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s Decision, and paragraphs 11 - 35 of the Board’s Decision.

6.  The applicant claimed that he would be harmed or killed by his creditor, Pham, upon refoulement.  Briefly stated, in 2014, the applicant partnered with his friend Le in operating a pawn shop.  He borrowed money from Pham, an influential money lender.  However, at the end of 2015, Le stole the working capitals of the shop and disappeared.  The applicant was unable to repay the loan to Pham, whose followers then started to harass the applicant.  On 1 May 2016, the followers got hold of the applicant and cut off his left ring finger.  Eventually, the applicant fled to Hong Kong for protection.

B.  The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3], and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  The hearing for the appeal was held on 8 February 2018, during which the applicant answered inquiries from the Board.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  The Board found that the crux of the applicant’s non-refoulement claim, ie, the loan agreement with Pham, Le’s theft and his fear of the creditor, lacked credibility (paragraphs 86 - 95 of the Board’s Decision).  Further, the Board in any event found that Pham’s alleged influence was localized and thus internal relocation was a reasonable option for the applicant (paragraph 115 of the Board’s Decision).  The Board therefore dismissed his appeal.

C.  The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 3 April 2018 (dated 26 March 2018)  seeking leave to apply for judicial review against the Director’s Decision and the Board’s Decision.  He did not request an oral hearing.  Other than repeating his claim, the applicant did not advance any specific grounds of review in his Form 86 and supporting affirmation except repeating his claim.

11.  After considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons set out at [13] - [18] of the Deputy Judge’s Decision:

“Discussion

13. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

14. When the applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on the latter’s decision.

15. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the inconsistencies and illogicality in the applicant’s evidence. It found him embellishing his claim during the hearing and concluded that he was not a credible witness. It alluded to the sufficiency of state protection. On the factual findings, there would be no basis for the applicant’s claimed fear. Further and in any event, the Board found that internal relocation would be a reasonable option to him.

16. As mentioned above assessment of evidence, risk of harm, availability of state protection and internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions unless there is a public law ground for the court to do so.

17. The complaint raised by the applicant in his affirmation did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a regurgitation of what he told the Director and the Board. There is no reasonably arguable basis to challenge the Board’s findings.

18.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.”

D.  Grounds of appeal

12.  The applicant’s ground of appeal in his Notice of Appeal was that:

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

13.  In his supporting affirmation filed on the same date, he simply submitted that there was a good ground of appeal that was not considered by the Deputy Judge.  Yet, he failed to elaborate on what the said good ground was.  Pursuant to the directions of Registrar of Civil Appeals dated 10 December 2020, the applicant filed his written submissions on 22 December 2020.  In his written submissions, he quoted passages from ST v Director of Immigration[5][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that the Deputy Judge failed to fully analyse the country of origin information and that he also failed to give sufficient weight to the extended concept of state acquiescence.

E.  Discussion

14.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They can be summarized as follows.

15.  First, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap 4A).

18.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.  Bearing these principles in mind, we are of the view that this appeal has no merit.

20.  The applicant’s ground of appeal as set out at [12] above is clearly not sustainable.  His arguments as summarised at [13] above were not put forward before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].  In this light, there is simply no viable ground against the Deputy Judge’s Decision.  On this basis alone, we will dismiss the appeal.

21.  In any event, as mentioned, the assessment of evidence and COI materials are within the province of the decision makers, ie, the Director and the Board.  The Court in judicial review is only to review whether the relevant decisions are tainted with any errors of law, procedural unfairness or irrationality.  In the present case, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We agree with the Deputy Judge that there are no grounds warranting any interference of the Board’s Decision by the court by way of judicial review.

22.  For all these reasons, we dismiss the appeal.