NGUYEN KHANH DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 412 /2020

[2022] HKCA 5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 412 OF 2020

(ON APPEAL FROM HCAL NO 92 OF 2018)

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J U D G M E N T

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

1.  By way of a Notice of Appeal dated 28 August 2020, the applicant sought to appeal the decision of Deputy High Court Judge Bruno Chan on 20 August 2020^[1].

2.  In both his Notice of Appeal and supporting affirmation filed on the same date, the applicant indicated that he wished to appeal against the judge’s refusal to grant leave to him to apply for judicial review against the decisions of the Torture Claims Appeal Board (“the Board”) and the Director of Immigration (“the Director”) concerning his non-refoulement protection claim. In the premises, the correct decision under appeal should be the decision of DHCJ Bruno Chan dated 9 December 2019 (“the Deputy Judge’s Decision”). By a letter dated 28 August 2020, the applicant consented to have his appeal disposed of on paper. We shall proceed on these bases.

3.  As the Notice of Appeal was filed before 18 January 2021 when the amendments to section 34B of the High Court Ordinance, Cap 4 came into effect, this appeal is dealt with by a court consisting of three judges.

4.  The applicant is a 28-year-old national of Vietnam. He entered Hong Kong illegally on 24 November 2014. He surrendered to the Immigration Department on 26 November 2014 and lodged a non-refoulement claim on the same date. His claim was made on the basis that he would be harmed or killed by the officials of the local authority of Vietnam due to his refusal to join the military service.

The Director’s Decisions

5.  By a Notice of Decision dated 31 December 2015 (“the Director’s First Decision”), the Director rejected the applicant’s non-refoulement claim on the grounds of torture risk^[2], BOR 3 risk^[3]and persecution risk^[4].

6.  The Director considered there were no substantial grounds to believe that there would be any real and substantial risk of the applicant being harmed or killed as alleged. The Director found that the alleged injuries inflicted by the four public security officers from the People’s Committee of Ngoc Hai Ward failed to attain a minimum level of severity and there was no evidence showing that the officials of local authority intended to cause serious harm or even kill him or that there was state involvement. The applicant also failed to show that he would be ill-treated in the military service or in prison upon refoulement. The low intensity and frequency of ill-treatment in the past indicates that the future risk of harm upon the applicant’s return to Vietnam was not likely to materialize. The Director also considered that the availability of state protection and internal relocation alternatives further lowered or negated the level of risk. Thus, the Director rejected his non-refoulement claim on the aforesaid three grounds.

7.  Further, in light of the findings in the Director’s First Decision and of the applicant’s failure to adduce additional information, the Director also rejected the applicant’s non-refoulement claim on BOR 2 risk^[5] in the Notice of Further Decision dated 7 December 2016 (“the Director’s Second Decision”).

8.  In this judgment, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s decision

9.  The hearing of the appeal against the Director’s Decisions was conducted before the Board on 27 March 2017, during which the applicant elected not to give evidence. He did answer several inquiries raised by the Board.

10.  The Board found that the applicant’s assertions in support of his claim were mostly hearsay evidence, and were speculative as well as unsupported by any admissible evidence. It also found that the simple fact of the applicant’s non-refoulement claim was that he did not want to be conscripted into the military and thus fled Vietnam to avoid compulsory military service. Even taking the applicant’s evidence as it was, the minor injuries in only two incidents of violence failed to satisfy the Board that the alleged injuries had attained a requisite level of severity. As a result, applying the principles laid down in the UNHCR handbook, the Board concluded that the applicant, as a draft-evader or a deserter of military service, had not proved other reasons that he would be harmed or killed by the officers of local authority if refouled. Therefore, the Board rejected the appeal on 4 September 2017 (“the Board’s Decision”).

The intended judicial review

11.  The applicant filed a Form 86 and an affirmation on 18 January 2018 to seek leave to apply for judicial review against the Director’s Decisions and the Board’s Decision.

The Deputy Judge’s Decision

12.  As the applicant did not request an oral hearing, DHCJ Bruno Chan proceeded to consider his leave application on the available documents. The judge found that the applicant was late by 1.5 months in taking out the leave application against the Board’s Decision and he did not provide any cogent explanations for the delay. He also failed to advance any grounds of review. Having considered both the Director’s Decisions and the Board’s Decision, the judge held that they had adhered to a high standard of fairness and there was no reasonable prospect of success in the applicant’s intended application. Therefore, the judge refused to grant extension of time to the applicant for leave to apply for judicial review against the Board’s Decision.

13.  On 19 December 2019, the applicant took out a summons seeking leave to appeal against the Deputy Judge’s Decision. After hearing the applicant on 5 June 2020, and having considered the legal principle in H v Director of Immigration (2020) 23 HKCFAR 248, by a decision dated 20 August 2020, the judge extended time for the applicant to file his notice of appeal against the Deputy Judge’s Decision^[6].

Grounds of appeal

14.  On 28 August 2020, the applicant filed a Notice of Appeal against the Deputy Judge’s Decision. The ground of appeal he advanced was that the gravity of his circumstances had not been weighed or realized by the Board or the Director. In his supporting affirmation filed on the same date, he alleged that there was a good ground of appeal that was not considered by the Deputy Judge. He did not however elaborate what that good ground was.

15.  Apart from repeating his personal background and his claim, the applicant submitted the following in his written submissions of 11 June 2021, which may be summarized below:

(1)  The Board acted in a procedurally unfair manner, contrary to the principle of high standard of fairness laid down in ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, in assessing the applicant’s credibility;

(2)  The Board and the Director violated the doctrine of reasonableness in their decision-making process as articulated in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233.

16.  These grounds were not raised in his original leave application.

Legal Principles

17.  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.

18.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

19.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

20.  The applicant’s present grounds against the Director and the Board were not raised in his previous leave application. The Court of Appeal has repeatedly stressed that an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^[7]. Thus, the Court of Appeal would not entertain his new grounds. On this basis alone, we will dismiss the appeal.

21.  In any event, the aforesaid legal principles mandate the applicant to point out with sufficient particularity the errors allegedly committed by the judge in assessing the Board’s Decision. Plainly, the applicant has failed to advance any viable grounds of appeal against the Deputy Judge’s Decision.

22.  For all these reasons, we dismiss the appeal.