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CACV 224/2022
[2022] HKCA 1198
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 224 OF 2022
(ON APPEAL FROM HCAL NO 444 OF 2019)
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NGUYEN THI PHUONG |
Applicant |
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TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative Respondent |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
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| Before: |
Hon Cheung and Chow JJA in Court |
| Date of Judgment: |
26 August 2022 |
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JUDGMENT
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Hon Chow JA (giving the Judgment of the Court):
1. On 2 June 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 20 May 2022 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 February 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 3 August 2017.
BACKGROUND
2. The Applicant is a national of Vietnam. She claimed to have entered China from Vietnam on 19 April 2015 and then illegally entered Hong Kong on 27 April 2015. On 29 April 2015, she surrendered to the Immigration Department and made a non-refoulement claim by way of a written statement, claiming that, if refouled, she would be harmed or killed by her creditor because she was unable to repay a loan. Details of the Applicant’s claim were summarised by the Judge at §§1-13 of the CALL-1 Form ([2022] HKCFI 1457).
3. By a Notice of Decision dated 3 August 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].
4. The Applicant appealed the Director’s decision to the Board. On 13 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).
5. Having considered the documents submitted by the Applicant and the evidence given at the hearing, the Board found her evidence to be contradictory and not credible, and did not accept the factual basis of her claim for non-refoulement protection. The Board further considered that, in any event, the Vietnamese government could provide adequate protection to the Applicant if she returned to Vietnam, and she could also safely relocate to other parts of Vietnam to avoid her creditor.
THE JUDGE’S DECISION
6. On 18 February 2019, the Applicant filed her Form 86 seeking leave to apply for judicial review of the Board’s Decision.
7. On 20 May 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
「[22] 申請人沒有在表格86提出任何申請司法覆核許可的理由。她在2019年2月18日存檔的支持司法覆核許可申請的誓章，重複她的案情及所恐懼受到的傷害，並展示上訴委員會的決定書。她不認同上訴委員會的決定，但沒有指出上訴委員會的決定有任何或什麼錯誤，也沒有提供申請司法覆核的理據。實質上，她是籍司法覆核的名義質疑上訴委員會的事實裁定提出上訴。在欠缺具體的申請理由的情況下，法庭在審理司法覆核許可申請時，只可聚焦覆核上訴委員會在審理免遣返申請時，有沒有犯上法律錯誤、涉及程序不公平、或它的決定是否不合理。
[23] 申請人投訴的實質是她不同意上訴委員會不相信她是因害怕被追債及殺害而必須逃離越南，並裁定她的免遣返申請欠缺事實基礎，而拒絕她的申請。這是上訴委員會的事實裁定，是它獨有的權限。若它的決定不涉及法律錯誤、程序不公平、或不合理的情況，法庭絕對不會干預。
[24] 法庭確認，上訴委員會正確地列舉了統一審核機制下四個適用的免遣返申請理由，正確地引用了適用的法律原則，並將這些原則正確地適用於它所裁定的事實，包括舉證標準和舉證責任，並引用了相關案例作為支援。上訴委員會正確地指出該聲請所涉及的事實和法律問題。它清楚地理解，其職責是重新考慮申請人的申請理據，而不是單決定是否維持或駁回處長在其通知書[中]內的決定。申請人的聲請是基於她稱欠下的債務，以及高利貸債主對她及其家人構成的威脅。上訴委員會認為她的案情內在不可信，不接受她關於對她生命構成威脅的證據，及她對風險的主張。由於申請人負上舉證的責任，基於這裁定，她的免遣返聲請與上訴必然落敗。這裁定是基於上訴委員會，經仔細權衡了證據及對申請人可信度的評估後，而作的事實裁定。除非該決定涉及法律錯誤、程序不公平、或不合理的情況，否則法庭絕對不能干預。
[25] 經認真及仔細審查上訴委員會的裁決書、相關的文件及證據後，法庭確定上訴委員會的決定完全沒有犯上絲毫法律錯誤，它的決定不存在可被視為程序不公平或「溫斯伯里」不合理的況 (即按照Wednesbury一案所訂標準，原審法官祇須審查案中證據，從而決定是否根據這些證據，一個合理的法官，對自己作出恰當的法律指引後，不可能會作出的決定)。申請人在本案沒有合理可爭辯的論據，她的司法覆核申請沒有合理成功機會。因此，法庭拒絕申請人的司法覆核許可申請。」
THIS APPEAL
8. In her Notice of Appeal dated 2 June 2022, the Applicant stated that she should be given an opportunity to plead her case properly. She repeated that if she returned to Vietnam, her life would be seriously threatened and she would probably die because gangsters in Vietnam are different from those in Hong Kong and most of them are cruel and violent. She added that there would be many difficulties or obstacles for her to relocate within Vietnam. Given her poor health and the fact that she was not an “active person”, she might be disadvantaged in the labour market, and there was no guarantee that she would be able to adapt to a new place and find a job to earn money to support herself. She also said that with the nationwide social network of gangsters and their clandestine connections with corrupt people in the government and the police, it was quite possible for her creditor and gangsters to find out about her new residence.
9. The Applicant has not lodged any written submissions in support of her appeal contrary to the directions of the Registrar of Civil Appeals dated 2 June 2022.
DISCUSSION
10. 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 of Appeal’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)).
11. The assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law, procedural unfairness or irrationality in the decision of the Board has been shown in the present case.
12. The Applicant has not pointed to or substantiated any alleged error in the decision of the Judge dated 20 May 2022, or raised any viable ground of appeal against the Order.
13. The Applicant’s appeal has no merits, and is dismissed.
14. This judgment is written in English although the decision of the Judge is written in Chinese, because the Applicant’s Notice of Appeal and Affirmation in support are both written in English. If required, the Applicant may make arrangement with the clerk of the Court for an oral interpretation of this judgment at a mutually convenient time.
(Peter Cheung)
Justice of Appeal |
(Anderson Chow)
Justice of Appeal |
The Applicant, acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.
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