RE PHAM DUC BANG

CACV 536/2021

[2022] HKCA 651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 536 OF 2021

(ON APPEAL FROM HCAL NO. 492 OF 2021)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision dated 26 November 2021 of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  on 29 March 2021 (‘Board’s decision’).  The applicant was absent at the hearing of his appeal.  We will deal with the appeal on paper.

2)  Background

2.  The applicant is a national of Vietnam.  On 2 January 2020, he entered Hong Kong illegally via the Mainland.  On 10 January 2020, he was arrested by the police. On 16 January 2020, he raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by his creditor and his followers.

3.  The details of the applicant’s claim have been summarized by the Judge at [2] to [3] of the CALL-1 Form.

3)  The Director’s Decisions

4.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 27 May 2020.  The decision covered the applicant’s rights under Articles 3 and 2 (right against torture and cruel and inhuman treatment, and right to life etc)  of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

5.  The applicant appealed against the Director’s Decision to the Board on 8 June 2020.  After a hearing held on 24 February 2021, the Board dismissed the applicant’s appeal against the Director’s decision on 29 March 2021 (‘Board’s decision’). 

6.  The Board held that the applicant only made bare assertions and provided no objective proof.  The Board found that information provided by the applicant was implausible and unreliable which adversely affected his credibility.  The number of inconsistencies in the evidence was serious and undermined the applicant’s reliability.  The Board was not convinced that the applicant came to Hong Kong due to the alleged threat.  The applicant failed to show that he would suffer a substantial risk of torture.  For the same reason, all other applicable grounds were not substantiated.

5)  Decision of the Judge

7.  The applicant filed a Form 86 with supporting affirmation before the Judge.

8.  The Judge assessed the applicant’s case and held that the applicant provided no proper grounds for his intended judicial review.  In the absence of error of law, irrationality, procedural unfairness, there was no reasonably arguable basis for the applicant’s application.

6)  Grounds of appeal

9.  The applicant stated in his notice of appeal the following :

‘ And further take notice that the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by Putative Respondent and Putative Interested Party while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.’

10.  The applicant is unrepresented but he has lodged a written submission prepared by counsel.  In the written submissions, five grounds for applying judicial review against the Board are stated which can be summarized as follows :

(1)  Ground 1 : taking irrelevant matter into consideration.

(2)  Ground 2 : failure of applying the high standard of fairness.

(3)  Ground 3 : failure of exercising independent assessment.

(4)  Ground 4 : irrationality.

(5)  Ground 5 : failure to take relevant matters into consideration.

7)  Our view

11.  We will repeat the approach of this Court in dealing with cases of this nature :

(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 the Board.  Though in non-refoulement claims cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the 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 their decisions.

(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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.  In our view, there are no merits in the applicant’s appeal.  Matters complained of in counsel’s submissions are all relating to the Board’s decision, not the Judge.  Nowhere was there any purported error of law made by the Judge.  Nowhere did counsel challenge nor justify how the Board was wrong in its assessment of the applicant’s credibility.

13.  Ground 1 of the applicant’s written submissions stated that the Board had commented ‘to the effect that the creditors had not inflicted serious injury or killed the applicant, and did not reach the minimum level of severity.  After all, the creditors meant to get repayment rather than harming the applicant’.  The applicant submitted that 20 days’ hospitalization on any objective reading could not be said by the Board to not be grevious bodily harm inflicted by the creditors.  In our view, the applicant misread the Board’s decision.  The Board had indicated in the earlier part of its decision on the credibility of the applicant which we have summarized in [6].  The submission now advanced by the applicant was, therefore, based on a false premise that the Board had accepted that he was hospitalized for 20 days.

14.  For Ground 2, the applicant complained that the Board did not actively seek to probe matters including whether the creditors have any relationship with the state.  The applicant said this is contrary to the high standard of fairness which requires the Board to take an active role to investigate matters.  However, the high standard of fairness does not mean that the applicant can sit back and not undertake the burden of proving his case.  On the basis that the Board did not accept that the applicant had been injured by the creditors, the Board was entitled to accept the Country of Origin (‘COI’)  materials to decide on this point.

15.  For Ground 3, the applicant complained that the COI materials as contained in [49] of the Board’s decision was not independently evaluated by the Board.  This is a bare assertion by the applicant that the Board had no independently evaluated the COI materials.  The fact that the Board had not spelt out the details of the materials does not mean that the Board had not independently evaluated these materials.  In any event, this ground is bound to fail as the basis of the Board’s decision in refuting the applicant’s claim was based on the applicant’s incredibility.

16.  For Ground 4, the applicant stated that the Board’s decision is irrational when it had ‘expressly agreed and accepted the facts that the applicant took 20 days to recover from serious injuries’.  This point is bound to fail by reason of our earlier observation.

17.  For Ground 5, the applicant complained that the Board failed to take into account the undue hardships faced by the applicant if he was to internally relocate within Vietnam.  This by itself does not show that there was any error of law or procedural irregularity in the Board ruling that the applicant is a 31-year-old able bodied person who can safely reside elsewhere without undue hardship.  

18.  We see no error in the Judge’s decision. Accordingly, the appeal is dismissed.