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CACV 276/2022
[2023] HKCA 96
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 276 OF 2022
(ON APPEAL FROM HCAL NO 1028 OF 2019)
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BETWEEN
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Phung Thi Tuoi |
Applicant |
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and |
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Torture Claims Appeal Board /
Non refoulement Claims Petition Office |
1st Putative
Respondent |
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Director of Immigration |
2nd Putative
Respondent |
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Before: Hon Kwan VP and Yuen JA in Court
Date of Written Submission: 25 July 2022
Date of Judgment: 1 February 2023
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J U D G M E N T
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Hon Kwan VP (giving the Judgment of the Court):
1. On 8 July 2022, Deputy High Court Judge To refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 18 July 2022.
2. The applicant is a national of Vietnam. She is 44 years old. She entered Hong Kong illegally in January 2015 and was subsequently arrested by the police for using a forged ID card and remaining in Hong Kong illegally. On 19 May 2016, she lodged her non-refoulement claim on the basis that she would be harmed or killed by her creditor as she had defaulted on repayment of a loan.
The Director’s decision
3. The Director of Immigration (“the Director”) was of the view that the applicant’s level of risk of serious harm from her creditor was low. In particular, the Director was of the view that there was inconsistent evidence produced by the applicant, and, in any event, the dispute was private in nature. The Director further held there was availability of state protection, according to official reports produced by various overseas government agencies. The Director was of the view that there was no risk of persecution upon the applicant’s return to Vietnam and that she failed to establish a real risk of being arbitrarily deprived of her life. It was also held that internal relocation was not unreasonable to the applicant, which further negates the perceived risk.
4. Therefore, by a Notice of Decision dated 5 February 2018, the Director rejected the applicant’s claim under all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].
The Board’s decision
5. The applicant appealed against the Director’s decision to the Board. She attended the hearing before the Board on 11 December 2018. The Board did not accept the version of events alleged by the applicant, and found it lacked credibility and reliability. The Board rejected the applicant’s claim that she had borrowed money from a creditor or that she had been ill-treated. The Board further was of the view that the influence of the creditor was localised and agreed with the Director that it would not be unreasonable for her to relocate to another region in Vietnam. Thus, the Board rejected the applicant’s appeal on 4 April 2019.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 16 April 2019 to seek leave to apply for judicial review against the decision of the Board. She did not provide any grounds in her Form 86. In her supporting affirmation, she reiterated the risk of harm she would face in Vietnam asserting that she would be subject to torture or even killed by her creditor as she is insolvent and annexed a copy of the decision of the Board.
The judge’s decision
7. As she did not request an oral hearing, the judge considered the application on paper. Having rigorously examined the Board’s decision, the papers and the evidence with anxious scrutiny, the judge was satisfied that the Board had correctly set out the law and identified the issues and a very high standard of fairness was observed in rejecting the applicant’s evidence and her account. The judge could not detect any error of law or procedural unfairness at any stage of the non-refoulement proceedings, and the decision of the Board was not Wednesbury unreasonable or irrational. Therefore, the judge concluded that the applicant’s intended challenge does not have any realistic prospect of success and dismissed the leave application on 8 July 2022.
Grounds of appeal
8. In the Notice of Appeal, the applicant advanced these grounds of appeal which may be stated as follows:
(1) the gravity of her circumstances has not been weighed or realised by the Director and the Board;
(2) she should be given an opportunity to plead her case properly;
(3) it is completely unfeasible for her to relocate, her health is not good and she is “not an active person” which is another factor that may disadvantage her in the labour market; there is “no guarantee” she will be able to find a job to support herself;
(4) it is quite possible for her creditor to find out about her new residence, with the nationwide network of gangsters and clandestine connections with corrupt people in the government and the police; and
(5) the gangsters in Vietnam are cruel and violent.
9. As for her written submissions, she reiterated that her life would be in danger if she should return to Vietnam. She cited legal principles on high standards of fairness and asserted that the Board acted in a procedurally unfair manner without properly assessing her credibility. She also claimed that the decision of the Board was Wednesbury unreasonable.
Legal principles
10. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
11. 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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.
Analysis and disposition
12. In the present appeal, the applicant’s grounds against the Director and the Board were not raised in her previous leave application. It has been repeatedly stressed in the Court of Appeal that an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[6]. We decline to entertain new grounds put forward by the applicant.
13. In any event, the aforesaid legal principles require the applicant to point out with sufficient particularity any errors allegedly committed by the judge in reviewing the decision of the Board. It is plain that the judge had scrutinised carefully the decision of the Board and found no grounds for the applicant to challenge by way of judicial review the fact finding of the Board, which was exclusively within the province of the Board and did not involve any error of law or procedural unfairness. The assertion that the decision of the Board was Wednesbury unreasonable is unsubstantiated.
14. As the applicant has failed to advance any viable grounds of appeal against the judge’s decision, we dismiss the appeal accordingly.
(Susan Kwan)
Vice President
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(Maria Yuen)
Justice of Appeal
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The Applicant, acting in person
[1] [2022] HKCFI 2060
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to 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).
[5] 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 and its 1967 Protocol.
[6] Re Qadir Sher [2018] HKCA 160 at §11
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