VU HONG DIEP v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 53/2023, [2023] HKCA 1378

On Appeal From [2023] HKCFI 303

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 53 OF 2023

(ON APPEAL FROM HCAL NO 69 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 13 February 2023, DHCJ K.W. Lung (“the Judge”) refused 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 (“the Board”) dated 28 December 2018.  In the Board’s decision, it upheld the decision of the Director of Immigration (“the Director”) dated 5 September 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 22 February 2023, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, she lodged a letter with the Court indicating her consent to have this appeal disposed of on paper without an oral hearing. 

3.  In compliance with the directions given by the Registrar of Civil Appeals on 22 February 2023, the applicant lodged her written submissions on 7 March 2023.

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 17 October 2016 and surrendered to the Immigration Department the next day.  On 29 December 2016, she raised a non-refoulement claim in writing.  On 9 August 2017, she submitted her non-refoulement claim form alleging that if refouled, she would be harmed or killed by her creditor as she had defaulted in repaying a loan.  The factual background of this case was succinctly summarised by the Judge in [5] of the Form CALL-1 ([2023] HKCFI 303).

6.  By a Notice of Decision dated 5 September 2017, the Director assessed the applicant’s claim on grounds relating to BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

7.  The applicant appealed the Director’s decision to the Board.  She attended an oral hearing on 6 November 2018, at which she had assistance from an interpreter.  By its decision dated 28 December 2018, the Board dismissed her appeal.  For the reasons set out in [46] – [53] of its decision, the Board found that her evidence was inconsistent in significant respects, particularly in relation to the term of the repayment of the loan (having varied her evidence between one week and one month) and the details of the alleged assault by her creditor (first saying she was stopped while riding her motorcycle, but later saying she was on foot; and also giving inconsistent evidence as to whether the assault took place at the creditor’s house, or at her own house).  The Board found she was an untruthful witness and rejected her case for lack of credibility.  Also, the Board did not find that the applicant would face risk of torture or any other form of proscribed harm upon her return to Vietnam [54] – [66].  For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

Decision of the court below

8.  On 9 January 2019, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision.  She did not provide any grounds of review in her Form 86, but merely said in her affirmation in support that she feared that she would be harmed or killed by her creditorand his subordinates due to her failure to repay her debt. 

9.  The applicant did not request an oral hearing and the Judge disposed of her application on paper.  After due consideration of the decision of the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [12] – [17] of the Form CALL-1:

“DISCUSSION

12. 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. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

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

‘13. (1) … …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.’

15. The Board had considered her evidence and did not believe it. The grounds in paragraph 11 above are not valid to challenge the Board’s Decision.

16. The Court therefore does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

Appeal to this Court

10.  On 22 February 2023, the applicant filed her Notice of Appeal advancing the following grounds:

“the gravity of my circumstances have noted (sic) been weighted or realized by both Putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”

11.  In her written submissions, she advanced the following grounds:

(1)  She was not provided with proper legal and language assistance.  With her limited resources and language capacity, it was difficult for her to understand the process and proceedings in respect of her non-refoulement claim and it amounts to procedural unfairness.

(2)  The Board failed to take into account the relevant Country of Origin information (“COI”) and to draw inferences that were favourable to the applicant’s case.

(3)  The Judge failed to appreciate or give sufficient weight to the presence of state acquiescence in the applicant’s case and it led to an unfair outcome of rejecting the applicant’s non-refoulement claim.

Legal principles

12.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court 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].  For the purposes of this appeal, the salient principles are as follows:

(1)  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 on appeal, which operates as a re-hearing, 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.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

13.  Apart from the applicant’s general complaint that the Judge had failed to give sufficient weight to the presence of state acquiescence in her case, she failed to pinpoint or identify any arguable error of law by the Judge, or any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

14.  The applicant’s complaint that the Director and the Board had not weighed her claim properly was a vague and general accusation without particulars and elaboration and cannot be a valid ground of appeal.  We are satisfied that the Judge was right to find that the Board had properly assessed and considered the applicant’s claim and there were no errors of law or any procedural unfairness or irregularities that would warrant the court’s intervention.

15.  In any event, it is clear from the Board’s decision that it rejected the applicant’s case for lack of credibility, as her evidence given at the Board’s hearing was significantly inconsistent with that she provided in her written claims and at the screening interview, particularly in respect of the repayment term of the loan and the alleged assault by her creditor (as mentioned in [7] above).   There was no evidence to suggest any state instigation or acquiescence.  As mentioned earlier, assessment of evidence, COI and risk of harm are within the province of the Board and the court would not intervene unless there is a valid public law ground.  The Board was entitled to make the findings as it did and we find no valid public law ground for a court to intervene.

16.  Regarding the applicant’s complaint that she was not provided with an opportunity to plead her case properly, she was provided with ample opportunities at the two-tiered screening process before the Director and the Board to provide all the relevant information and supporting evidence for her non-refoulement claim[5].  In the circumstances, the applicant’s complaint simply cannot stand.

17.  As to the applicant’s complaint that she was not provided with proper legal and language assistance, the high standard of fairness does not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process, see Re Zunariyah [2018] HKCA 14.  The applicant had legal representation provided by the Duty Lawyer Service during the proceedings before the Director. 

18.  The applicant was provided with a Vietnamese language interpreter at the hearing before the Board.  In any event, it is further noted that all the court documents and written submissions from the applicant have been written in English, indicating either that the applicant is familiar with the English language or that she has access to such language assistance as needed.

19.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

20.  For the above reasons, this appeal is dismissed.