RE LUU KIM NGUYEN

CACV 192/2023, [2023] HKCA 1168

On appeal from [2023] HKCFI 1510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 192 OF 2023

(ON APPEAL FROM HCAL NO. 859 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge) given on 13 June 2023[1] refusing leave to the applicant to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 25 March 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 7 August 2018 rejecting the applicant’s non-refoulement claim.

3.  On 26 June 2023, the applicant has consented to his appeal being determined on the papers without an oral hearing.

4.  Despite directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support his appeal.

Background

5.  The applicant is a 55 year-old national of Vietnam. He entered Hong Kong illegally and surrendered to the Immigration Department on 17 November 2014. On the same day, he lodged a non-refoulement claim.

6.  The details of his claim are set out in details in [6] of the Director’s decision. The applicant’s claim is based on fear of being harmed or killed by his creditor due to his inability to repay his debt. In gist, the applicant claimed that in 2007 he took a loan from a loan shark (“Lam”) to finance his business, and the loan was secured by a charge over his parents’ house. In 2010, as his business did not do well and he was unable to make repayment, Lam and his men, who were armed with wooden sticks, threatened to kill him if he did not make repayment. Due to fear of retaliation, he did not report the matter to the public security authority and left for another city in Vietnam where he stayed for four years. Fearing he might be found by Lam, he went to Shenzhen and eventually sneaked into Hong Kong.

7.  In the claim made to the Director, the applicant also stated that he feared he would be imprisoned by the Vietnamese government on account of his leaving the country without authority and be subject to inhumane treatment in prison. This part of his claim, however, was not maintained in his appeal to the Board nor in the proceedings before the Judge and this Court.

The Director’s decision

8.  By a Notice of Decision dated 9 March 2018, the Director rejected the applicant’s claim on the BOR 2 risk^[2], BOR 3 risk^[3], persecution risk^[4] and torture risk^[5] grounds. In summary, the Director considered that on the applicant’s case, it could not meet the requirements for establishing any of the applicable grounds. The Director further considered that internal relocation options were reasonably available to him, which would reduce any risk of harm that he might face upon being refouled.

The Board’s Decision

9.  The applicant appealed to the Board. On 28 December 2018, the Board conducted an oral hearing, during which he gave evidence and answered questions from the Board. By a decision dated 7 August 2019, the Board dismissed the appeal.

10.  In gist, for the reasons set out in [34] to [45] of its decision, the Board found there were major and inexplicable inconsistences between the applicant’s account given to the Director and his evidence given to the Board, and had grave doubt on the credibility of the applicant. The Board found his evidence incredible and unreliable. The Board further considered that even on the applicant’s case, it did not meet the requirements for non-refoulement entitlements under any of the applicable grounds. The Board also found state protection and internal relocation alternatives were reasonably available, which would negate or reduce any risk of harm that the applicant might face. The Board concluded that the applicant’s claim was not substantiated and dismissed his appeal.

The Judge’s decision

11.  The applicant filed a Form 86 on 28 March 2019 to apply for leave to judicially review the Board’s decision. In his supporting affirmation, he reiterated the factual basis of his claim, but did not provide any grounds for seeking relief.

12.  By a Form CALL-1 dated 13 June 2023, the Judge refused to grant leave for judicial review and gave his reasons at [14] to [19] as follows:

“14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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 the decision of the Board.”

17. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Grounds of appeal

13.  By a Notice of Appeal filed on 26 June 2023, the applicant appeals the Judge’s decision to this Court. The Notice of Appeal stated the following as grounds of appeal:

(1) If the applicant is repatriated, his life will be in danger. The creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people.

(2) Relocation is not feasible as the applicant will face many difficulties and obstacles, given he does not enjoy good health and is not an active person. He will be disadvantaged in the labour market and may not be able to find a job to support himself. With their nationwide network and connections with the police and government officials, his creditor and the gangsters can find him no matter where he goes.

(3) The Director did not consider his human rights.

Our reasons for decision

14.  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]. They are that:

(1) The primary decision makers in relation to a claim for non-refoulement are the Director and the Board. They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2) The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

(3) 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.

15.  In light of the established legal principles set out above, we are of the view that the applicant’s appeal has no merits.

16.  First and most importantly, the applicant has not identified any error in the Judge’s decision or his reasons.

17.  Second, assessment of credibility, risks of harm and country of origin conditions is a matter for the Board, who is the primary decision maker. The Board had, for the reasons it gave, found the applicant’s evidence not credible, that even on the applicant’s own case, the risk of harm faced by him did not satisfy the requirements for granting non-refoulement protection, and that internal relocation alternatives were available. The applicant’s complaints against the Board’s decision are no more than general assertions with no particulars, and do not provide proper basis for the Court to grant relief. In the circumstances and in light of the Board’s rejection of his claim, the applicant’s assertion of fear of harm in the written statement cannot amount to arguable ground of appeal.

18.  Third, as to the complaint about the Director’s decision, as the applicant had appealed the Director’s decision to the Board, the Director’s decision has been superseded and is no longer susceptible to judicial review.

19.  We have separately considered the Board’s decision. We do not discern any legal errors, irrationality or procedural irregularities. Like the Judge, we are of the view that the intended judicial review has no reasonable prospect of success and that the application for leave to apply for judicial review should be refused. Accordingly, we dismiss the appeal.