HOANG THI TUOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 37/2023, [2023] HKCA 481

On Appeal From [2023] HKCFI 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 37 OF 2023

(ON APPEAL FROM HCAL NO 2235 OF 2018)

____________

____________

_________________

J U D G M E N T

_________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 3 February 2023 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 10 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 18 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Vietnamese national born in 1968.  Having entered Hong Kong illegally, she was arrested by the police in Hong Kong on 11 November 2013 and subsequently repatriated to Vietnam on 4 December 2013.  She entered Hong Kong illegally again (on 14 November 2014 according to her), and was arrested on 16 November 2014. A removal order was made against her on 1 December 2014 and served on her on 3 December 2014.  On the same day, she made a non-refoulement claim by way of written representation.  Her claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by her creditor called Nguyen Van Duc for failure to repay a loan.  The details of her claim were set out at paragraphs 7.1 to 7.22 of the Director’s notice of decision dated 18 May 2017.

3.  By notice of decision dated 18 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against her.  Those applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk[3] and BOR 2 risk.[4]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 1 June 2018, during which the applicant gave oral testimony and answered questions from the Board.  Although the Board found certain inconsistencies in the applicant’s evidence, it did not reject the possibility that the applicant did owe a debt to her creditor which she was unable to repay.  The Board however found that, having regard to the low intensity and low frequency of the alleged ill-treatment from the creditor in the past, there was nothing to support the suggestion that the creditor would kill or severely harm the applicant.  The Board also found that state protection would be available to the applicant if she encountered difficulties after her return to Vietnam, and that internal relocation (such as to Ho Chi Minh City or Vung Tau where the applicant’s husband was living) was a viable option which would further lower or negate any perceived risk of harm.  Accordingly, in its written decision dated 10 October 2018, the Board found that the applicant did not face any relevant risk of harm upon return to Vietnam, and dismissed her appeal on all the applicable grounds.

Decision of the court below

5.  On 15 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  She did not set out any grounds for judicial review in the Form 86.  In her supporting affirmation she merely stated that if she was repatriated, the creditor and his underlings would not spare her and would even kill her since interest had been accumulating and she now owed a big sum which she was unable to repay.

6.  Following consideration of the documents without an oral hearing, on 3 February 2023 the Judge handed down his decision in writing, refusing to grant the applicant leave to apply for judicial review, for reasons set out at [17] – [19] of the Form CALL-1 as follows:

“ 17. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she only repeated her fear of being harmed or killed by the loan shark and his underlings because she is unable to repay the loan.

18. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to Vietnam. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Vietnam. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim on the basis of the case as she asserted but found the risk of harm she would face on her return to Vietnam was low.  On the basis of credible country of origin information, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk if it turned out to be real.  It was on that basis that the Board found that she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.”

Appeal to this Court

7.  On 9 February 2023, the applicant filed a Notice of Appeal against the Judge’s decision.  In that document she stated that if she returns to Vietnam, her life will be seriously threatened, because the creditors and gangsters in Vietnam are cruel and violent and willing to kill people to satisfy their anger and ferocity.  It is completely infeasible for her to relocate within Vietnam because her health is not good, she is not an active person, and there is no guarantee she will be able to adapt to the new place and find a job.  With the nationwide network of gangsters and clandestine connections with corrupt people in the government and police, it will be quite possible for the creditor to find out her new residence.  In an affirmation filed on the same date, the applicant stated that there is a good ground of appeal which had not necessarily been considered, but she did not identify that ground.

8.  On the same day that she filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing. Accordingly this appeal is being determined on the papers.

9.  The applicant lodged her written submissions for the appeal on 23 February 2023 in which she briefly referred to the factual background as well as the procedural history of her claim. In the remainder of her submissions, she set out certain general legal principles and quoted passages from case authorities (without however explaining how they applied in her case), and asserted that the Board had acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.

10.  The applicant further submitted that if she returns to Vietnam, her life will be seriously threatened and she will probably end up dead, because creditors and gangsters in Vietnam are different from those in Hong Kong; most of them are cruel and violent, disregard the law and are willing to kill people.  Because she has not yet agreed on a repayment plan with her creditor, the applicant requested that her deportation be postponed, otherwise she will be killed if refouled.  Finally, the applicant submitted that the Director did not consider her human rights under the Basic Law and under the International Covenant on Civil and Political Rights, as well as other international human rights laws.

Discussion

11.  In assessing the merit 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. 

12.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

13.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection due to the Board’s finding that even on the applicant’s narrative, she had not suffered any serious harm, and that there was no real risk of harm in the event of refoulement.  The Board also found that suitable state protection would be available and that internal relocation (including to Vung Tau where her husband was living safely) was viable.  These findings are within the province of the Board and are open to it based on the evidence available.  The court will not interfere with such assessments unless they are vitiated on public law grounds.  There do not appear to us to be any such grounds in this case.

14.  Nor has the applicant been able to point to any error in the Judge’s decision.

15.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave to apply for judicial review. There is no viable ground to challenge his decision.

16.  For these reasons, this appeal is dismissed.

[1]  This refers to the 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).

[2]  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.

[3]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).