TRAN THI PHUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 367 & 368 /2023, [2024] HKCA 1100

On appeal from [2023] HKCFI 2848

(Heard together)

CACV 367/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 367 OF 2023

(ON APPEAL FROM HCAL NO 2257 OF 2018)

________________________

________________________

AND

CACV 368/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 368 OF 2023

(ON APPEAL FROM HCAL NO 3708 OF 2019)

________________________

________________________

(Heard together)

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  These two appeals before the court are considered together. The applications for leave for judicial review were dealt with together in the court below and a single judgment was given.

2.  In these two appeals, the 1^st and 2^nd applicants in HCAL 2257/2018 (who are, respectively, the “Husband” and “Wife”) and the applicant in HCAL 3708/2019 (the “Daughter”)  (collectively, the “applicants”)appeal against the order of Deputy High Court Judge To (the “Judge”)  dated 3 November 2023 (the “Judge’s Decision”)  refusing to grant them leave to apply for judicial review against the Notices of Decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”), dated 15 October 2018 (in respect of the Husband and Wife)  (“Decision A”)  and dated 9 December 2019 (in respect of the Daughter)  (“Decision B”).

3.  The applicants indicated their consent in writing for their appeals to be disposed of on paper.  Accordingly, we proceed to consider their appeal on paper based on the available materials.

Background

4.  The applicants are Vietnamese nationals from the same family.  The Husband and Wife entered Hong Kong on 9 December 2013 illegally and surrendered to the authorities on 17 December 2013.  On 18 March 2014, they raised a non-refoulement claim.  The Daughter and her brother entered Hong Kong together illegally on 16 December 2013 and surrendered to the authorities.  The Daughter lodged her claim for non-refoulement protection by written submission dated 18 March 2014.  Her brother voluntarily returned to Vietnam in May 2017.

5.  The applicants’ case is based on the same grounds.  In gist, they claimed that they would be harmed or killed by a moneylender (the “Moneylender”)  upon their return to Vietnam due to the inability of the Husband and Wife to repay the Moneylender.  Details of the applicants’ claim were summarized by the Judge at [7]-[14] of the Judge’s Decision.

6.  By the Notice of Decision dated 3 November 2016 (“Notice A”)  and the Notice of Decision dated 29 June 2018 (“Notice B”), the Director dismissed the applicants’ non-refoulement claims on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely, torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

7.  The applicants respectively appealed against the Director’s Decisions to the Board.  Decision A and Decision B, (collectively the “Decisions”), were made by the Board constituted of the same member. The applicants’ claims were made on the same basis and relied on the same evidence.  The Board assessed their claims and confirmed the Director’s Decisions.  The Board’s reasons were summarised by the Judge at [16]-[21] of the Judge’s Decision:

“16. The Board found that despite the Moneylender and his men had the opportunity and capability to cause the couple serious bodily harm or kill them, they never did. Based on the injuries they inflicted on the Applicants, the Board found that the evidence did not demonstrate a manifest intention on the part of the Moneylender to seriously harm the couple in the past or in the future. It found the actions taken by the Moneylender were only designed to coerce the couple into making repayment and not to cause them serious bodily harm. It also found that the past threats and assaults did not attain a minimum level of severity.

17. It further found the Moneylender and his men were non-state actors. There is no evidence that their use of force on the couple was instigated or condoned by the state. Although the Vietnamese police refused to register their complaint against the Moneylender, that only showed that an individual officer had failed to perform his duty. That did not reflect the attitude of the Vietnamese police as a whole.

18. On the basis of authoritative and credible country of origin information, the Board found that the Vietnamese government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens. It was satisfied that state protection of an adequate standard is available to prevent or negate the risk and harm from the Moneylender.

19. As the Moneylender could not locate the couple and their children after they moved to Ho Chi Minh City, Tinh Quang Ninh or Mong Cai, the Board rejected the Applicants’ assertion that the Moneylender was so well-connected that they could locate them anywhere in Vietnam. The Board held that as able-bodied adults with business experience, the couple can safely relocate to other parts of Vietnam to minimize the risk of harm from the Moneylender.

20. It also rejected the couple’s claim that their inability to repay their debt to a national military bank in Vietnam would result in death penalty as a mere speculation not supported by evidence. Further, if the couple had to face legal consequences of their inability to repay their debt, it would be a legal sanction and not torture. Hence, their inability to repay their debt to the bank could not be relied on as a ground for seeking protection.

21.  As for Persecution Risk, the Board found that there was no evidence of any involvement by state agent and that the Applicants’ risk of harm from the Moneylender did not arise out of a reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely race, religion, nationality, membership of a particular social group or political opinion.  For the above reasons, the Board dismissed their appeal.”

The Judge’s Decision

8.  The applicants did not advance any grounds for judicial review in their Form 86.  In their supporting affirmations, they only repeated the gist of their claim and their son’s complaint about him being hunted by the Moneylender and his men.  They also enclosed a copy of their son’s letter advising them not to return to Vietnam or they would be killed.

9.  At the hearing before the Judge on 5 October 2023, the Judge explained to the applicants that the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].  After the above legal principle was explained to them, the Husband complained about procedural unfairness in that the applicants did not have time to prepare for the hearing before the Board.  He complained that the applicants were not provided with language assistance in understanding the documents in the hearing bundle and that the hearing bundle was not served on them until seven to ten days before the hearing of the appeal.

10.  The applicants also complained about irrationality.  The essence of their complaint was that they disagreed with the finding of the Board that it is safe for them to return to their home country. They sought to rely on their health problems, and claimed the Daughter is retarded and cannot survive in Vietnam.

11.  On 3 November 2023, the Judge’s Decision was handed down.  The Judge refused to grant leave to the applicants to apply for judicial review, for the reasons summarised below (see [25] to [30] of the Judge’s Decision):

(1)  Regarding the complaint of procedural unfairness, the applicants had adequate time to prepare for the appeal and to find out about the contents of the relevant court documents.  Further, as a matter of law, a claimant does not have absolute right to free language assistance at all stages of proceedings: Karamjit Singh CACV 78/2018.  The Court of Appeal held in Karamjit Singh that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant should desire or require.

(2)  As to the applicants’ disagreement with the assessment of the Board, the Board assessed the applicants’ claim on the basis of the case as they asserted and its finding of availability of state protection and feasibility of internal relocation.  On the basis of these findings of facts, the Board found the applicants are not entitled to non-refoulement protection under any of the four applicable grounds.  In effect, the applicants are seeking to challenge the Board’s findings that they would not face any real harm or risk of harm if returned to Vietnam.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

(3)  Having rigorously examined the Decisions, the papers and the evidence with anxious scrutiny, the Judge is satisfied that:

(i)  The Board assessed the applicants’ claim on the basis of the case as they asserted.  They could not have any complaint on this finding of fact.  On the basis of authoritative and credible country of origin (“COI”) information, the Board is also satisfied that state protection is available and internal relocation is feasible to prevent or avoid the risk and harm if these turn out to be real.  These are findings 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.

(ii)  The Judge could not detect any error of law in the Decisions or procedural unfairness at any stage of the non-refoulement proceedings.  The Decisions do satisfy the enhanced Wednesbury test.  They are not Wednesbury unreasonable or irrational.  The Decisions are utterly without fault.  The proposed judicial review has no realistic prospect of success.

12.  For the above reasons, the Judge refused the applicants’ leave to apply for judicial review.

This appeal

13.  In their respective Notices of Appeal both dated 16 November 2023, the applicants reiterated that their lives would be seriously threatened as the creditors and gangsters in Vietnam are different from those in Hong Kong, that they would be at risk of being tortured, beaten or even killed.  They also claimed that internal relocation would be unfeasible as they were not active people.  They claimed that the Immigration Department failed to consider their human rights under various legislations.  In their supporting affirmations both dated 16 November 2023, the applicants vaguely stated that a good ground of appeal was not necessarily considered at the stage of applying for leave to judicial review.  However, they did not specify what that ground was.

14.  Contrary to the directions of the Registrar of Civil Appeals dated 16 November 2023, the applicants did not lodge any written submissions.

Discussion

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In particular, 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.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst at [14(6)]).

16.  Further, the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation is 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: Re Kartini [2019] HKCA 1022.

17.  In our view, the applicants’ appeal is without merit.  They have failed to identify or show any error in the Judge’s Decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Leave Decision.  All their allegations were vague, bare and general without any specific particulars or evidence in support.  General assertions of their fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of their allegations are proper grounds of appeal.  Their appeal must fail on this basis alone.

18.  In any event, we have considered the Judge’s Decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Judge’s Decision.

19.  The applicants’ appeals against the Judge’s Decision have no merit.  We therefore dismiss the appeals in CACV 367/2023 and CACV 368/2023.