RE NGUYEN VAN TRUC

CACV 473/2021

[2022] HKCA 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2021

(ON APPEAL FROM HCAL 1048/2021)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 5 October 2021 refusing leave to the applicant to apply for judicial review. 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 16 July 2021 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 4 May 2021 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Vietnam.  Between 2003 and 2006, the applicant came to Hong Kong and was deported twice.  He arrived in Hong Kong again on 5 June 2008 using a passport belonging to another person, and he was subsequently issued a Hong Kong permanent identity card on 19 March 2019.  His entitlement to the permanent identity card was, however, cancelled due to his breach of the earlier deportation order issued by the Immigration Department.  A further deportation order dated 19 January 2021 was then made against the applicant.  Thereafter, he lodged a non-refoulement claim on 1 March 2021.   

3.  The applicant’s claim was based on a fear of being harmed or killed by a gang leader in Vietnam by reason of their past disputes.  The details of the applicant’s claim have been summarised by the Judge at [4] to [5] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.  By a Notice of Decision dated 4 May 2021 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed to the Board.  After a hearing on 9 July 2021, the Board dismissed the appeal on 16 July 2021 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board noted that the applicant chose not to report his dispute with the gang leader to the police, and in any event, there were many viable options for internal relocation within Vietnam, which would reduce the risk of harm, if any.

The Judge’s decision

6.  The applicant filed a Form 86 on 26 July 2021 seeking to judicially review the Board’s Decision and set out inter alia the following as his proposed grounds of review:

“… I believe that the [Director] and the [Board] reached the decision wrongly in assessing my Non-refoulement claims. The decisions were not reasonable and fair (as required by the Wednesbury test)…”

7.  In the applicant’s supporting affirmation, he simply exhibited a copy of the Board’s Decision.

8.  After summarising the facts and background of the case, giving due consideration to the Director’s Decision and the Board’s Decision and hearing from the applicant at the hearing, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [18] of the CALL-1 Form:

“12. 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

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

‘13. …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.’

15. He has submitted no valid ground to assist his application. The Board has, in fact, considered the merit of his case, which it found to have no merit at all.

16. 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.

17. There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 18 October 2021, the applicant stated, inter alia:

(1)  the Judge reached his decision unfairly without allowing him an opportunity to clarify his case;

(2)  the Director failed to take into account relevant considerations in reaching his Decision;

(3)  the Board failed to give him adequate opportunity to adduce relevant evidence in support of his appeal.

10.  No supporting affirmation was filed by the applicant.

11.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

12.  The applicant failed to lodge skeleton submissions, as directed by the Registrar of Civil Appeals. However, by a letter dated 25 November 2021, the applicant informed this court that:

(1)  he would like to withdraw his appeal to this court because he has decided to return to Vietnam;

(2)  all his problems have been resolved and there is no longer any threat or danger to his life in Vietnam.

Discussion

13.  The applicant has indicated that he no longer wishes to pursue the present appeal.  We see no reason why the appeal should not be dismissed in light of the applicant’s most recent letter.

14.  For the sake of completeness, we have nonetheless proceeded to consider the merits of the intended appeal.

15.  The applicant has in his Notice of Appeal failed to identify with particulars any error on the part of the Judge and has thus failed to raise any viable ground of appeal.  His complaint of a lack of opportunity to clarify his case with the Judge is devoid of merit, as an oral hearing was held by the Judge at which he appeared in person.

16.  The applicant has provided no particulars as to why and how the Director or the Board were unreasonable or unfair in reaching their decisions, or how such decisions are said to be Wednesbury unreasonable.

17.  For these reasons, regardless of the applicant’s latest stance and application for withdrawal, the appeal is in any event wholly unmeritorious and is liable to be dismissed.

18.  We accordingly dismiss the appeal.