HOANG VAN NANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 47/2024, [2024] HKCA 415

On Appeal From [2024] HKCFI 329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 47 OF 2024

(ON APPEAL FROM HCAL NO 1319 OF 2019)

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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 7 February 2024 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 August 2017.

BACKGROUND

2.  The Applicant is a national of Vietnam. He entered Hong Kong illegally on 22 March 2015. On 24 March 2015, he surrendered himself to the Immigration Department and lodged a non-refoulement claim alleging that, if refouled, he would be harmed or killed by his creditor because of his inability to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§3-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 28 August 2017 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds, including the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. At the Applicant’s request, the Director also assessed the Applicant’s claim based on BOR 7[5] although, as pointed out by the Board, the right under BOR 7 is not absolute or non-derogable. The Applicant’s claim based on BOR 7 was likewise rejected by the Director.

4.  The Applicant appealed the Director’s Decision to the Board. On 10 May 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 §§9-11 of the CALL-1 Form:

“[9] The Board recapped the applicant’s claim and his personal background [22]-[24]. Having considered the evidence, the Board made the following findings. It noted that the applicant was evasive in answering even the straightforward questions and was unable to provide clarifications or details [30].

[10] In particular, the Board observed that the applicant attempted to avoid questions on the details; that the applicant confirmed that he did not have mental problems; that he could not produce the loan documents; that he was evasive as to when he defaulted the loan; that he was inconsistent as to which hospital they were sent to after the car accident; that he could not produce any documents as to the car accident or the subsequent hospitalization; that he was evasive as to why he could afford to pay the medical expenses and the damaged goods; that it was unreasonable that he did not have any insurance policy; that he was inconsistent as to the number of people who assaulted him; that he failed to explain why the creditor did not kill him if the creditor was minded to do so; that he failed to mention the assault in the non-refoulement claim form; that he claimed at the hearing that he did not seek medical treatments; and that his claim under BOR7 risk was not substantiated [30].

[11] In light of these inconsistencies, the Board found that the applicant’s claim was not credible. Meanwhile, the country of origin information indicated that he could relocate to other area to negate the risk of harm, if any [33]-[37]. Even taking the applicant’s claim to the highest, the Board found that the nature of the assault and the degree of the injuries sustained indicated that the creditor would not torture or even kill the applicant; that the creditor was not as powerful as claimed; that the applicant could seek state protection; and that there was no state involvement [41]-[43]. In any event, internal relocation was a viable option [58]-[60].”

THE JUDGE’S DECISION

5.  On 17 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 or in his supporting affirmation of the same date.

6.  On 7 February 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[15] 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…

[16] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[18] There is no valid reason from the applicant to challenge the Board’s Decision.

[19] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

THIS APPEAL

7.  In his Notice of Appeal dated 8 February 2024, the Applicant repeats his claim that his life will be seriously threatened, and he will probably die, if he 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. He disagrees with the Director’s assessment that he can move to another location in Vietnam to avoid his creditor for various reasons, and alleges that the Immigration Department failed to consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

8.  In his affirmation of the same date, the Applicant states that he 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 he fails to identify what that ground may be.

9.  By a written confirmation dated 8 February 2024, the Applicant consented to his 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 his appeal contrary to the directions given by the Registrar of Civil Appeals on 8 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.