RE NGUYEN THI KIM

CACV 23 /2022

[2022] HKCA 307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 23 OF 2022

(ON APPEAL FROM HCAL NO 2729 OF 2018)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  The applicant lodged a Notice of Appeal on 11 January 2022 against the decision of Deputy High Court Judge Lung (“the Judge”) given on 29 December 2021^[1]. By that decision, the Judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  The applicant is a national of Vietnam.  She is 62 years old.  She entered Hong Kong illegally in April 2012 and was repatriated to Vietnam in June 2012.  On 12 November 2015, she was arrested by the police for entering into Hong Kong illegally.  She raised a non-refoulement claim on 17 November 2015 on the basis that she would be harmed or killed by her creditor upon her return to Vietnam due to her inability to repay her debt. 

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  She lodged her written submissions on 13 January 2022 pursuant to the directions of the Registrar of Civil Appeals. 

The Director’s decision

4.  By a Notice of Decision dated 7 April 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

5.  The Director assessed that the level of risk of harm the applicant would face is low as the past harm inflicted by the creditor and his people did not meet the minimum level of severity.  The Director also found that her problem is a private debt with nothing to do with the Vietnamese government or authorities.  The Director further held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  

The Board’s decision

6.  Their appeal against the Director’s decision was heard before the Board on 5 October 2018.  By a decision dated 26 November 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s claims about her business, the illness of her husband and daughter, her borrowing from the moneylender, and the harm and ill-treatment inflicted on her to be fabrication, having regard to significant inconsistencies in her evidence.  In particular, her evidence concerning the illness and medical treatments received by her husband and daughter, the nature of the business she operated and the time she borrowed from the moneylender had significantly discrepancies and was also inconsistent with her previous accounts of the events.  The Board did not accept that she experienced any problems or harm from the creditors and considered there is no real risk that she would face any of the prescribed forms of harm should they return to Vietnam.  The Board further found state protection and internal relocation alternatives were reasonably available, which would reduce or negate any risk of harm she may face.  The Board therefore concluded that she failed to show she is entitled to non-refoulement protection on any of the applicable grounds.

The intended judicial review

7.  The applicant filed a Form 86 and affidavit on 3 December 2018 to seek leave to apply for judicial review against the decision of the Board.  In her application, other than repeating the primary facts underlying her claim and reiterating the harm she would face upon her return to Vietnam, the applicant did not put forward any specific grounds for the intended challenge.

The Judge’s decision

8.  The Judge dealt with the leave application on the papers as the applicant did not request for an oral hearing.  By a Form CALL-1 dated 29 December 2021 ([2021] HKCFI 3856), the Judge dismissed the leave.  In summary, the Judge found that the applicant does not have any reasonably arguable basis to challenge the finding of the Board as she failed to raise any ground to challenge the Board’s finding and decision. The Judge found no error of law or procedural unfairness in the Board’s decision and concluded that there is no prospect of success in the intended judicial review.

The grounds of appeal

9.  By a Notice of Appeal and an affirmation filed on 11 January 2022, the applicant appealed the Judge’s decision to this Court.  In the Notice of Appeal, she stated by way of grounds of appeal that:

(1)  the gravity of her circumstances has not been weighed or realized by the putative respondents in considering her non‑refoulement claim;

(2)  she should be given an opportunity to plead her case properly.

10.  In her affirmation, the applicant stated that: “I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and “I was informed that the Director of Immigration and the Adjudicator did not see the grounds to reserve their decision.”   

11.  The applicant’s written submission gives an outline of her claim and the procedural history.  Under the “Submission” section, it quotes extensively from Secretary for Security v Saktheval Prabakar [2005] 1 HKLRD 289 at [43] to [45] and [51], and also refers to ST v Betty Kwan[6] [2014] 4 HKLRD 277 as well as the decisions on the principle of Wednesbury unreasonableness.  It is said that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.  It also complains that the Director did not consider the applicant’s human rights under the Basic Law and various international covenants.  Finally, it says that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, her life will be in danger as she has not yet agreed a repayment plan with the creditors.            

Legal Principles

12.  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.

13.  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 issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

Analysis and disposition

14.  For the following reasons, we are of the view that the matters put forward by the applicant have no merits:

(1)  What was stated in the applicant’s affirmation are bare assertions with no elaboration on the specific grounds of appeal that the applicant seeks to put forward.  As such, they do not amount to proper grounds of appeal.

(2)  The Board had accepted the primary facts underlying the applicant’s claim.  The applicant’s complaint that the Board did not fairly or properly assess her credibility is therefore misplaced.

(3)  In any event, assessment of credibility and risks of harm is a matter for the Board, who is the primary decision maker.  The Board had, for the reasons it gave, found the risk of harm faced by the applicant to be very low and did not satisfy the requirements for granting non-refoulement protection.  The applicant has not pointed to any error in the Board’s assessment, and the assertion of fear of harm in the written submission cannot amount to arguable ground of appeal. 

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

15.  We have separately considered the Board’s decision.  We do not discern any legal errors, irrationality or procedural irregularities. We agree with the Judge that the intended judicial review has no prospect of success, and the Judge was correct in refusing to give leave to apply for judicial review. 

16.  For the above reasons, there is no merit in the appeal or the intended application for judicial review.  Accordingly, we therefore dismiss the appeal.

[1]   [2021] HKCFI 3856

[2]   As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3]   This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4]   This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5]   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 and its 1967 Protocol.

[6]   Misquoted as “ST v Director of Immigration” in the applicant’s written submission.