RE LE VAN THANH AND ANOTHER

CACV 515/2020

[2021] HKCA 625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 515 OF 2020

(ON APPEAL FROM HCAL 1080/2018)

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J U D G M E N T

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

1.  On 23 September 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicants in HCAL 1080/2018 to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 14 May 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 16 February 2017 rejecting the applicants’ non-refoulement claims.

2.  On 28 September 2020, the 1^st applicant filed a Notice of Appeal against the Judge’s decision. However, the written submission filed on 9 December 2020 purports to be of both applicants.

Background

3.  The applicants are a married couple and Vietnamese nationals.  They arrived in Hong Kong on 2 November 2013 and were permitted to remain as visitors until 9 November 2013.  They did not depart and overstayed.  On 11 November 2013 the applicants surrendered to the Immigration Department, and subsequently raised their non-refoulement claims on 22 March 2014. 

4.  The applicants’ claims were based on the fear that, if they returned to Vietnam, they would be harmed or even killed by (1) gangsters for refusing to pay protection money, and (2) the authorities in Vietnam for destroying a stone sculpture of Ho Chi Minh.  The factual background was set out at paragraphs 6.1 to 6.13 of the Director’s decision and summarized by the Judge at [1] – [4] of the Form CALL-1 ([2020] HKCFI 2414, HCAL 1080/2018).

5.  By notice of decision dated 16 February 2017, the Director assessed the applicants’ claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 13 April 2018, during which the applicants gave oral testimony.  The Board found that their evidence was not credible: their factual accounts being replete with irreconcilable and unexplainable inconsistencies on material issues as well as being implausible. It rejected the applicants’ evidence.  The Board concluded that the applicants’ claims relating to demands for protection money were fabricated.

7.  The Board further determined that, even on the applicants’ case,  the risk of harm was extremely low in the event of refoulement (i.e. no real risk of harm).  The Board also found that, in any event, state protection was available and internal relocation was viable.  Therefore, on 14 May 2018 the Board dismissed the applicants’ appeal on all the applicable grounds.

Decision of the court below

8.  On 12 June 2018, the applicants sought leave from the court to apply for judicial review against the Board’s decision.  In their affirmation in support of their application, the applicants deposed that if they were to return to Vietnam, they would be at risk of torture or being killed by their creditor.  They said they disagreed with the Board’s decision. However, the applicants did not specify any public law grounds for seeking judicial review.

9.  On 23 September 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [9] – [12] of the Form CALL-1 ([2020] HKCFI 2414, HCAL 1080/2018).  In a nutshell, after considering the case with rigorous examination and anxious scrutiny, the Judge did not discern any error of law or procedural unfairness in their process before the Board.

Appeal to this Court

10.  In the Notice of Appeal, the 1^st applicant reiterated the factual basis of his claims.  Again he did not formulate any grounds of appeal.

11.  On 29 September 2020, the applicant agreed in writing for the appeal to be processed on the papers without any oral hearing.

12.  The applicant lodged written submissions on 9 December 2020, containing only facts related to the claims. No grounds of appeal were put forwarded.

13.  The 1^st Applicant filed an affirmation on 16 April 2021 indicating that he was willing to have his appeal dismissed as he could return to Vietnam safely.  He did not refer to the position of the 2^nd Applicant, whose position is not clear.

14.  We shall therefore consider the appeal on its merit.

Discussion

15.  As discussed in 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], 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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.

16.  Further, 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. 

17.  In the present case, the Board rejected both applicants’ claims for non-refoulement protection based on its adverse finding on the applicants’ credibility and on its rejection of their evidence.  The Board found that there was no real risk of harm.  The Board also concluded that state protection was available and internal relocation was viable.  Such findings are within the province of the Board.

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and he has applied the relevant legal principles correctly.  The Judge is plainly right in refusing to grant leave as there is no reasonably arguable ground to challenge the decision of the Board.

19.  For these reasons, this appeal falls to be dismissed in any event.