RE CHU VAN BAC

CACV 233/2021

[2021] HKCA 1843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 233 OF 2021

(ON APPEAL FROM HCAL NO. 2633 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung 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 28 April 2021.

2.  Pursuant to the directions of the Registrar of Civil Appeals on 24 June 2021, the applicant was required to provide written submissions to the Court by 8 July 2021.  The applicant failed to do so, and pursuant to paragraphs 6 and 7 of the same directions, the applicant was deemed to have abandoned his right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.  Background

3.  The applicant is a national of Vietnam.  He arrived in Hong Kong illegally via the Mainland.  He then raised a non-refoulement claim on 30 January 2015 on the basis that if he returned to Vietnam he would be harmed or killed by a moneylender called Cuong for failing to repay the money borrowed to buy audio equipment for his business.

4.  The details of the applicant’s claim have been summarized by the Deputy Judge at [5] of the CALL-1 Form.

III.  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 23 March 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), Article 2 (right to life)  of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 28 March 2017.  After a hearing held on 26 July 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 8 November 2018.

7.  Based on the totality of evidence, the Board found the applicant’s story to be a fabrication.  The Board found that the evidence as contained in the applicant’s non-refoulement claim form was inconsistent with the evidence as contained in the applicant’s record of interview before the Director.  The Board found that the applicant’s case was purely a private personal dispute between a moneylender and a borrower.  The Board found that on the applicant’s version of purported business earnings, it was not possible for him to repay interest and principle for the purported loan.  It was impossible for the lender to have agreed to lend money to the applicant.  The applicant claimed to be in the audio equipment business yet he had no knowledge of the basic audio equipment terms.

8.  The Board further found that the applicant failed to show that he has a valid claim for non-refoulement protection on any of the established grounds.

V.  Decision of the Judge

9.  The applicant filed a Form 86 with a supporting affirmation.  In his supporting affirmation, he stated that if refouled his life would be in danger.  He stated that he could not prove the risk of harm because he cannot guess what will happen in the future.

10.  The Deputy Judge on 28 April 2021 held that the Board did not accept the factual basis of the applicant’s claim.  There was no error of law or procedural unfairness that could be found.   

VI.  Grounds of appeal

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

‘ I want to appeal against the order of the Judge of Court of Appeal.
I want to appeal against the decision of Torture Claim Appeal Board and Director of Immigration. I cannot return to Viet Nam, because I have to faced risk of being killed and torture by my creditor and gangster since I am insolvent’

12.  The grounds of appeal as stated in the notice of appeal are bare allegations without specifics or elaboration.

VII.  Our view

13.  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 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.

14.  In our view, there is no merit in the applicant’s appeal.  The Deputy Judge had provided his reasons of refusal in his decision.

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