RE TRAN VAN PHONG

CACV 120/2021

[2021] HKCA 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 120 OF 2021

(ON APPEAL FROM HCAL NO 2707 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  On 10 March 2021, Deputy High Court Judge K W Lung (“Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 25 October 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 26 November 2015 and 3 March 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 24 March 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Vietnamese national.  He surrendered to the Immigration Department on 15 April 2014, having entered Hong Kong illegally earlier.  On 14 May 2014 he lodged a non‑refoulement claim. 

4.  The applicant’s claim was based on the fear that, if he returned to Vietnam, he would be harmed or even killed by his mother’s creditor, who was a loan shark, for her failure to repay a loan.  The factual background of his claim was set out at [7] to [25] of the Board’s decision.

5.  By two notices of decision dated 26 November 2015 and 3 March 2017 respectively, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former decision covered BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] while the latter covered BOR 2 risk.[4]

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 16 October 2018, during which the applicant answered questions from the Board.  The Board found that the applicant’s claim was largely based on hearsay from his mother, and that such hearsay evidence was vague, general, unreliable, inconsistent and illogical.  As a result, the Board gave no weight to the applicant’s evidence, and was not persuaded that his mother had borrowed money from a loan shark or that he had been threatened and assaulted by the creditor or otherwise ill‑treated in Vietnam.  The Board determined that there was no real risk of harm in the event of refoulement, and further found that reasonable state protection was available and internal relocation was viable.  Accordingly, in its decision dated 25 October 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

7.  On 29 November 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his Form 86, he stated that he could not go back to his country because there would be a serious threat to his life if he were to return.  He did not however specify any actual grounds for judicial review.

8.  Following consideration of the documents only (as the applicant had not asked for an oral hearing), on 10 March 2021 the Judge refused to grant leave for judicial review.  The reasons for the refusal were  set out at [14]‑[16] of the Form CALL‑1 ([2021] HKCFI 552, HCAL 2707/2018) as follows:

“ 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. His ground in support of this application is only his opinion without any evidence or specific in support of it. It does not assist his application.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The Board had considered the merits of his case before it made its Further Decision not to extend time to the applicant to file his 2^nd Notice of appeal.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

Appeal to this Court

9.  On 24 March 2021, the applicant filed his Notice of Appeal against the Judge’s decision, in which he reiterated the factual allegations that formed the basis of his claim, but did not raise any grounds of appeal in the sense of any alleged errors in the decision of the Judge below.

10.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

11.  The Registrar of Civil Appeals directed on 6 May 2021 that the applicant must lodge his written submissions on appeal on or before 20 May 2021.  Subsequently the Registrar extended the deadline to 9 June 2021 for the applicant to lodge his written submissions, indicating that otherwise the appeal would be processed based on documents already submitted.

12.  The applicant has failed to lodge any submissions as directed.  Accordingly this appeal is disposed of on paper without a hearing, based on documents already submitted.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and will 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 his decision was otherwise plainly wrong.

(3)  In an appeal against 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 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 the appeal were a fresh application for judicial review.

Discussion

14.  As mentioned earlier, the applicant did not put forward any grounds of appeal.  In his Notice of Appeal, he merely reiterated the factual basis of his claim, and failed to identify any alleged errors in the Judge’s decision or any other specific reason for reversing the Judge’s decision.

15.  As we will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are none in this case, the appeal should be dismissed.

16.  Further, the Board had rejected the applicant’s claim for non‑refoulement protection based mainly on its finding that the applicant’s evidence was unreliable.  The Board determined that there was no real risk of harm in the event of refoulement, and found that in any event state protection was available and internal relocation was viable.  Such findings were open to the Board, and the court will not interfere with them unless they are vitiated on valid public law grounds but there is none. 

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  There was no reasonably arguable case for judicial review of the Board’s decision and the Judge was right to refuse leave.

18.  For these reasons, the appeal is dismissed.

[1] This refers to the 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).

[2] 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.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).