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CACV 39/2024, [2024] HKCA 384
On Appeal From [2024] HKCFI 264
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 39 OF 2024
(ON APPEAL FROM HCAL NO 1231 OF 2019)
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BETWEEN
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NGUYEN THI NHUONG |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD / |
Putative |
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NON-REFOULEMENT CLAIMS |
Respondent |
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PETITION OFFICE |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
_____________________
| Before: |
Hon G Lam and Chow JJA in Court |
| Date of Judgment: |
7 May 2024 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 19 January 2024 (“the Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 29 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 January 2017.
BACKGROUND
2. The Applicant is a national of Vietnam. She entered Hong Kong illegally and surrendered herself to the Immigration Department on 16 December 2014. She lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by a creditor called Truong Van Truong (“Truong”) for being unable to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§4-5 of the CALL-1 Form.
3. By a Notice of Decision dated 19 January 2017 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s Decision to the Board. On 29 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §9 of the CALL-1 Form:
“Having considered the evidence, the Board found that Truong did not possess the intention to seriously harm or even kill the applicant [32]; that the applicant’s evidence about the operation of business was in doubt [33]; that the circumstances of the loan were doubtful [34]; that the applicant failed to give a good reason for failing to leave Vietnam as soon as possible [35]; that there was no evidence that Truong was related to the authority [36]; that it was bare assertion that the police would not assist her [37]; that there was no basis that Truong could locate her everywhere if refouled [38]; and that another basis for her unwillingness to return to Vietnam was that she was married to a Swedish national who was applying for visa for her to stay in Sweden [39]. In any event, internal relocation was a viable option [50]-[54].”
THE JUDGE’S DECISION
5. On 8 May 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In her supporting affirmation of the same date, the Applicant repeated her claim that if she was refouled to Vietnam, she would face a genuine and substantial risk of being subject to torture or even be killed by her creditor and his men since she was insolvent.
6. On 19 January 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:
“[13] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board…
[14] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
…
[16] The Board had, for the reasons given in paragraph 9, supra, rejected her evidence and her claim that she has real risk of harm or being killed upon her return to [Vietnam].
[17] There is no valid ground from the applicant to challenge the Board’s Decision.”
THIS APPEAL
7. In her Notice of Appeal dated 1 February 2024, the Applicant repeats her claim that her life will be seriously threatened, and she will probably die, if she returns to Vietnam, because most creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. She disagrees with the Director’s assessment that she can move to another location in Vietnam to avoid her creditor for various reasons, and alleges that the Immigration Department failed to consider her human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.
8. In her affirmation of the same date, the Applicant states that she understands that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, but she fails to identify what that ground may be.
9. By a written confirmation dated 1 February 2024, the Applicant consented to her appeal being disposed of on paper by the Court without an oral hearing.
10. The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 1 February 2024.
DISCUSSION
11. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases 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 v Director of Immigration [2018] HKCA 524 at §14(6)).
12. Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.
13. The Applicant has 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 Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
14. The Applicant’s appeal against the Order has no merit and is dismissed.
(Godfrey Lam)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] 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.
[4] 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.
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