VI THI HIEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 176 /2024, [2024] HKCA 1080

On appeal from [2024] HKCFI 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 176 OF 2024

(ON APPEAL FROM HCAL NO 2222 OF 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 23 April 2024, Deputy High Court Judge To refused to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim and dismissed her application for leave[1]. The applicant filed a Notice of Appeal against the said decision on 6 May 2024.

2.  The applicant is a national of Vietnam.  She was previously repatriated to Vietnam in 1992.  She claimed that she entered into Hong Kong illegally on 21 February 2016.  She was arrested by the police on 2 March 2016.  She lodged her non-refoulement claim on 7 April 2016 on the basis that, if refouled, she would be harmed or killed by her creditor.

The decision of the Director

3.  By a Notice of Decision dated 18 September 2017, the Director of Immigration (“the Director”)  rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  The Director assessed that the level of risk of harm upon the applicant’s return to her home country is low, as the creditor and her people had only made some verbal threats and low level assaults.  The Director considered that the creditor did not intend to seriously harm or kill the applicant.  It was noted that the creditor did not inflict any harm on the applicant during her stay in Vietnam for about two years after the second attack before she left for Hong Kong.  The applicant’s problem with her creditor was private in nature and there is no evidence to show that the acts of the creditor and her people are in any way related to any Vietnamese officials, political parties or organisations.  The Director also found that state protection and internal relocation options are available to the applicant in Vietnam, which further lower or negate any perceived risk.  

The decision of the Board

5.  The applicant attended the hearing of the appeal against the Director’s decision before the Board on 8 July 2019.  The Board held that the applicant’s creditor only aimed to ask for money without any intention to harm or kill her.  It was considered that the mental and physical suffering of the applicant has not attained the requisite minimum level of severity.  The Board further found that the applicant’s problem only relates to a private monetary dispute and there is no evidence of any involvement from the Vietnamese government.

6.  The Board also found that reasonable state protection would be available to the applicant in Vietnam and it would be feasible for her to relocate to other places in Vietnam such as Ho Chi Minh City and Hanoi to avoid the feared risk of harm.  Thus, the Board held that the applicant’s appeal fails on all applicable grounds and dismissed the appeal on 20 January 2020.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 11 December 2023 to seek leave to apply for judicial review against the decision of the Board.  The leave application was well made out of time.  The applicant put forward the following grounds for her intended challenge:

(1)  The Director and the Board’s decisions are unreasonable and unfair;

(2)  The Director failed to appreciate or give proper importance to the presence of state acquiescence;

(3)  The Board acted unreasonably and was procedurally unfair by placing excessive reliance on the country of origin information while disregarding the applicant’s personal background and experience;

(4)  The Board was procedurally unfair when assessing her explanations and unreasonably demanded responses to questions;

(5)  The Board failed to provide sufficient time and opportunity for her to arrange for relevant evidence;

(6)  There are no missing elements that would warrant the dismissal of the request for judicial review.

The judge’s decision

8.  The applicant was absent at the hearing scheduled before DHCJ To on 7 March 2024.  The judge therefore determined the application on paper.  The applicant was late for more than 3 years in filing the leave application and did not provide any explanation for the substantial delay.  The judge found there is no error of law in the Board’s decision and no procedural unfairness at any stage of the non-refoulement proceedings.  The judge also held that the Board’s decision was not Wednesbury unreasonable or irrational.  As the applicant had no reasonable explanation for the very inordinate delay and there is no realistic prospect of success in her proposed judicial review, the judge refused to grant leave for the applicant to file the leave application out of time on 23 April 2024.

Grounds of appeal

9.  The applicant’s grounds of appeal in the Notice of Appeal may be summarised as follows:

(1)  If she returns to Vietnam, her life will be seriously threatened or she will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(5)  The Director and the Board “did not see the grounds” to reserve their decisions.

10.  The applicant has submitted a written consent for the appeal to be disposed of on paper without an oral hearing.

Legal principles

11.  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.

12.  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 cases the court will adopt an enhanced standard in scrutinising 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 Country of Origin Information 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.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

14.  The applicant’s grounds in the present application are just bare assertions.  She has not identified or adduced any evidence to refute the Board’s findings.  She also failed to identify any error in the judge’s decision.  There is no basis to reverse the judge’s decision.

15.  For the above reasons, the applicant’s grounds of appeal are devoid of merit.  The appeal is dismissed accordingly.