RE NGUYEN DUY BACH

CACV 365/2021

[2022] HKCA 574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 365 OF 2021

(ON APPEAL FROM HCAL 2748 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an 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 16 July 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2021] HKCFI 2010).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 December 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 27 July 2021, the applicant indicated his consent for this appeal to be disposed of on paper. Accordingly, we proceed to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Vietnam. He surrendered to the Immigration Department on 18 September 2014 and lodged a non-refoulement claim on the same day on the basis that he would be harmed or killed by the Vietnamese government or the Vietnam People’s Public Security,and that he might be charged with the offence of treason and be imprisoned. Factual details of the applicants’ claim were summarised by the Deputy Judge at [5] of the Leave Decision.

5.  By a Notice of Decision dated 30 December 2016, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

6.  On 12 January 2017, the applicant appealed against the Director’s Decision to the Board. The Board dismissed his appeal on 16 November 2018. The Board found that the applicant’s evidence was not credible, and that there was no evidential basis to substantiate his fear that he would be charged for the offence of treason. Having considered and assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 4 December 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review of the Board’s Decision. He did not provide any ground of review in his Form 86. In his supporting affirmation, he only repeated the alleged factual basis of his non-refoulement claim.

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. The Deputy Judge considered that the reasons provided by the applicant did not assist his application as assessment of the evidence, the Country of Origin information (“COI”) and risk of harm, state protection and viability of international relocation were primarily within the province of the Board and the Director: see Re Kartini [2019] HKCA 1022 at [13]. The Court would not intervene by way of judicial review unless public law errors existed. As the applicant’s intended judicial review had no prospect of success, the Deputy Judge dismissed his application for leave to apply for judicial review.

The Appeal

9.  On 27 July 2021, the applicant filed a Notice of Appeal against the Leave Decision. In his Notice of Appeal, although the applicant noted that an interpreter had been arranged to assist him during the hearing before the Board, he complained about the lack of language assistance as the hearing bundle was not read to him prior to the oral hearing. He complained that he had no means of finding out whether the interpreter had been interpreting his words correctly. He further requested that the Director should consider his case afresh and if necessary, his assessment on the basis of the BOR2 risk should be done separately. He also complained that the Deputy Judge had failed to carry out sufficient research and inquiry into the COI.

10.  Pursuant to the directions of the Registration of Civil Appeals dated 27 July 2021, the applicant lodged his written submissions on 5 August 2021. In his written submissions, he complained that there had been procedural impropriety and unfairness given the Board’s failure to carry out sufficient research and inquiry into the COI. He also complained that the Board had been irrational for its failure to take into account or give proper weight to relevant COI; its failure to evaluate and make a finding of fact as to whether there existed a consistent pattern of gross and mass violation of human rights in Vietnam; and its failure to analyse and assess whether state protection existed in Vietnam.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  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. 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.

13.  At the outset, it is noted that the matters raised in his Notice of Appeal and written submissions are all new grounds not raised before the Deputy Judge. It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15]. Accordingly, we refuse to entertain his new grounds.

14.  In any event, the arguments raised in his Notice of Appeal and written submissions have no merit at all. As repeatedly emphasised by this Court, assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: 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]. The Board had already considered his claim in detail and weighed the evidence before finding that the applicant’s evidence lacked credibility and that his claim could not be substantiated.

15.  Equally, his complaints regarding the lack of language assistance before the Board must fail. It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20]. The applicant was assisted by an interpreter during the hearing before the Board and he had not raise any complaint to the Board about the interpretation services provided at the time. In fact, the Board had already adjourned the hearing of the proceedings to allow sufficient time for the interpreter to interpret and explain the COI materials used in the Director’s Decision to the applicant and to allow him to comment on the same.[5] We consider that a high standard of fairness had been achieved in the overall process of the determination of his non-refoulement claim.

16.  In any event, we have reviewed both the Board’s Decision and the Leave Decision as well as the reasons the Board and the Deputy Judge gave for their decisions. We see no error of law, mistake of fact, or procedural impropriety in reaching those decisions. The applicant had proper opportunities to plead and present his case before the Board and the Deputy Judge. The Board had weighed the evidence and considered his claim in detail. The Deputy Judge had also considered his application for leave to apply for judicial review in detail. In the absence of any error committed by the Deputy Judge, there is no basis to disturb the Leave Decision.

17.  For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.