RE NGUYEN VAN HONG

CACV 380/2020

[2021] HKCA 658

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 380 OF 2020

(ON APPEAL FROM HCAL NO 2847 OF 2018)

________________________

________________________

____________________

J U D G M E N T

____________________

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 KW Lung (“the Deputy Judge”) set out in the Form CALL‑1 dated 5 August 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 1862.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 7 December 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 16 June 2016 (“the Director’s First Decision”) and 3 March 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

3.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

4.  The applicant filed his Notice of Appeal on 17 August 2020.  On the same date, he consented to this application to be disposed of on papers by this Court without an oral hearing.  This is our judgment.

A.      Background

5.  The applicant is a national of Vietnam.  He, together with his wife and two children, entered Hong Kong illegally on 2 January 2016.  They surrendered to the Immigration Department on 4 January 2016.  On the same day, he lodged a non-refoulement claim on behalf of his family.  For the purpose of the court proceedings, the applicant became the only applicant as his wife withdrew the appeal against the Director’s Decisions and the children had already returned to Vietnam (paragraph 11 of the Board’s Decision).

6.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s First Decision, and paragraphs 14 - 21 of the Board’s Decision.

7.  The applicant claimed that he would be harmed or killed by a money lender, Dung, and Dung’s associates because he failed to repay the loan.  Briefly stated, the applicant borrowed money with a high interest rate from Dung for his grocery shop in mid-2012.  However, the business deteriorated and the applicant was unable to repay the loan.  As a result, he was threatened and later kidnapped by Dung for defaulting the loan in 2014.  Whilst he successfully escaped from them, out of fear, he fled to Hong Kong for protection.

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

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

9.  The applicant appealed the Director’s Decisions to the Board.  The hearing for the appeal was scheduled on 17 August 2018 and later adjourned to be on 27 August 2018 and 10 September 2018 respectively.  Initially, the applicant stated that he also acted on behalf of the children who were absent from the hearing.  He also called the wife as the witness for his case.  At the resumed hearing, the wife clarified that she would withdraw her appeal as she wanted to return to Vietnam.  She also stated that she had already sent the children back to Vietnam. The applicant and his wife gave evidence before the Board in support of the applicant’s non-refoulement claim.  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.

10.  The Board found that the applicant was not a credible witness because his evidence on the loan and on the assault was inconsistent and implausible (paragraphs 22 - 46 of the Board’s Decision).  In any event, state protection and internal relocation were both available to the applicant (paragraphs 47 - 49 and 68 - 70 of the Board’s Decision).  Insofar as the claims of the children were concerned, the Board found that the applicant failed to prove that the children were in Hong Kong and that, for the reasons given in dismissing the applicant’s non-refoulement claim, the Board also rejected the children’s claims (paragraph 71 of the Board’s Decision).  Thus, the Board dismissed his appeal.

C.      The Deputy Judge’s Decision

11.  The applicant filed a Form 86 on 11 December 2018 seeking leave to apply for judicial review against the Board’s Decision.  He did not request an oral hearing.  In his supporting affirmation filed on the same date, he advanced the following grounds of review against the Board, which were summarized by the Deputy Judge at [13] of the Deputy Judge’s Decision:

“13. In his affirmation in support of his application, he said that the Board did not rely upon medical report but simply relied upon subjective feeling to assess his injuries and that it had relied upon some irrelevant materials to discredit his evidence and disbelieved him. He further said that the Board was prejudicial against him in its assessment of the risks.”

12.  After considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons set out at [14] – [18] of the Deputy Judge’s Decision:

“DISCUSSION

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant. See paragraph 11.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …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. The grounds in support of the applicant’s application are his opinions without evidence or particulars to support them.

17. However, even if the applicant’s evidence were accepted by the Board, the fact remains that state protection and relocation are available to him. These he did not dispute. The Court of Appeal in TK v Michael Jenkins Esq and Director of Immigration [2013] 1 HKC 526 held that he is not eligible for non-refoulement protection if he has state protection or if he can relocate himself within his own country.

18. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

D.      Grounds of appeal

13.  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 weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.” [sic]

14.  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 what the said good ground was.  Pursuant to the directions of Registrar of Civil Appeals dated 29 October 2020, the applicant filed his skeleton submissions in Chinese on 4 November 2020. In that, he only repeated his personal background and his claim.  Other than that, he did not identify any errors in the Deputy Judge’s Decision.

E.      Discussion

15.  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.

16.  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.

17.  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.

18.  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).

19.  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.

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

21.  The grounds and arguments advanced by the applicant in the Notice of Appeal and the written submissions do not show in any respect any error in the Deputy Judge’s Decision.  They are therefore not viable grounds of appeal.  On this basis alone, the appeal should be dismissed.

22.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.       Disposition

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