RE TRUONG THI LUA

CACV 177/2022

[2022] HKCA 1607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 177 OF 2022

(ON APPEAL FROM HCAL NO. 1121 OF 2021)

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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 the appeal against the decision of Deputy High Court Judge Bruno Chan (the ‘Judge’) dated 27 April 2022, where he refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 14 July 2021.

2.  The applicant consents to this appeal being determined on paper without an oral hearing. This is our judgment.

II.  Background

3.  The applicant is a national of Vietnam. She entered Hong Kong illegally on 2 November 2016 and was arrested by the police on the same day. She subsequently raised a non-refoulement claim by way of written representation on the basis that she would be harmed or killed by her creditor over her outstanding debts if she is returned to Vietnam.

4.  The background and details of the applicant’s claim have been summarised by the Judge at [1] to [5] of the CALL‑1 Form dated 27 April 2022 (published as [2022] HKCFI 1222) (the ‘CALL‑1 Form’).

III.  The Director’s Decision

5.  The Director of Immigration (the ‘Director’) decided against the applicant’s claim on 18 January 2021. The decision covered all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘Torture Risk’), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’) being violated including right to life under Article 2 (‘BOR 2 Risk’) and risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (‘BOR 3 Risk’), and risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (‘Persecution Risk’).

6.  The Director assessed the leave of risk of harm from the applicant’s creditor to be low and in any event, it was a private matter with no involvement of the state. The Director also considered that there was reasonable internal relocation within Vietnam and police protection was available to the applicant.

IV.  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board. An oral hearing was held on 8 July 2021 and the applicant gave evidence. On 14 July 2021, the Board dismissed the applicant’s appeal and affirmed the Director’s Decision.

8.  The Board did not accept the veracity of the applicant’s claims. The Board was of the view that the evidence of applicant was sketchy and there was serious suspicion on her credibility. The Board went further and stated that appears the evidence of the applicant might have been scripted and adopted by her own through rote memory. In any event, the Board concurred with the Director that the dispute of the applicant and her creditor were private in nature and state/police protection was available. The Board also held that internal relocation was not unreasonable for the applicant if she is returned to Vietnam.

V.  The Judge’s Decision

9.  On 10 August 2021, the applicant filed a Form 86 with a supporting affirmation. In her supporting affirmation, she simply stated that she wishes to apply for judicial review. There were no proper grounds put forth for her intended challenge.

10.  As set out in [11] to [14] of the CALL-1 Form, the Judge did not find any error of law or procedural unfairness in decisions of both the Director and the Board, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. The Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review, and he dismissed the applicant’s leave application.

VI.  The present appeal

11.  The applicant filed a notice of appeal on 19 April 2022, a supporting affirmation on 4 May 2022 and written submissions on 18 May 2022. In the notice of appeal, the applicant simply stated that the gravity of her circumstances had not been weighed or realized by the Board and the Director when considering her claim and she should be given an opportunity to plead her case properly. In her supporting affirmation, she stated that there was a ‘good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review’.

12.  As for the applicant’s written submissions, it repeats the procedural background of her case and goes on to produce some general principles of law relating to non‑refoulement claims without providing any elaboration or their relevance.

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, the applicant’s appeal is simply devoid of merits.

15.  The Judge had duly considered the decisions of the Director and of the Board, and had provided proper reasons for refusing the application. The applicant has failed to identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision in her notice of appeal or affirmation or written submissions. Accordingly, the appeal is dismissed.