PHAM VAN NGAN v. TORTURE CLAIMS APPEAL BOARD

CACV 86/2023, [2023] HKCA 1375

On Appeal From [2023] HKCFI 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 86 OF 2023

(ON APPEAL FROM HCAL NO 1510 OF 2022)

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J U D G M E N T

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

Introduction

1.  On 10 March 2023, DHCJ Bruno Chan (“the Judge”) refused to grant an extension of time to the applicant to seek leave to apply for judicial review against the decision made by the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 September 2018 and dismissed the leave application.  The Board’s decision will be referred to later in this Judgment [10].

2.  On 21 March 2023, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing. 

3.  Pursuant to the directions of Registrar of Civil Appeals made on 21 March 2013, the applicant should lodge his written submissions on or before 4 April 2023.  He failed to do so.  The Registrar had directed that in the event the applicant failed to lodge his written submissions by the deadline, he will be deemed to have abandoned his right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials.  In fact on 20 December 2023, the applicant filed a request to dismiss his notice of appeal.  However as this judgment had already been prepared, it is appropriate to hand it down.

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 12 September 2015 and was arrested by the police on 18 September 2015.  He was then referred to the Immigration Department for investigation.  On 27 September 2015, he raised a non-refoulement claim by way of written presentation on the basis that if he returned to Vietnam, he would be harmed or killed by his creditors over his unpaid debts.  Subsequently, he lodged his non-refoulement claim form on 26 April 2017.  The factual background of this case was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2023] HKCFI 462).

6.  By a Notice of Decision dated 2 June 2017, the Director of Immigration (“the Director”) having assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], determined it against him.

7.  In his decision, the Director assessed the level of risk of harm from the applicant’s creditors upon the applicant’s return to Vietnam as low.  As explained in [11] and [12] of the Director’s decision, the Director found that there is no evidence of any real intention of the applicant’s creditors to seriously harm or kill him other than to put pressure on him to repay his loans.  Even on his own account, there was only one incident of assault in April 2014 in which he claimed he only suffered cuts and bruises and required medical treatment at a local hospital.  In any event, it was a private monetary dispute without any official involvement [14].  Further, state or police protection would be available to the applicant if sought [17] – [18].  The objective country of origin information (“COI”) showed that reasonable internal relocation alternatives are available in Vietnam and it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to other large cities of Vietnam where it would be difficult if not impossible for his creditors to locate him [19].

8.  On 17 June 2017, the applicant lodged an appeal to the Board against the Director’s decision. 

9.  On 31 July 2018 however, he wrote to the Board requesting to withdraw his appeal as he wanted to return to his home country because his problem in Vietnam had been resolved and it was safe for him to return.  He repeated his request to withdraw his appeal in another letter to the Board on 30 August 2018.

10.  In a letter dated 6 September 2018, the Board allowed the applicant’s request to withdraw his appeal/petition after due consideration of all the available information placed before it, being satisfied that the applicant’s request was freely made, and that he understood the consequences of the withdrawal.  The Board was also satisfied that the applicant had good reason to do so as he considered it would be safe for him to return to Vietnam.  The Board accordingly directed that the applicant’s appeal/petition be withdrawn. 

Decision of the court below

11.  However, more than four years after the applicant’s withdrawal of his appeal/petition to the Board, on 15 December 2022, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision of 6 September 2018.  The application was out of time (O.53, r.4 of Rules of High Court (Cap.4A)).  In the applicant’s supporting affirmation, he did not explain the inordinate delay, nor advance any ground for seeking relief.  He merely stated that he did not agree with the Board’s decision, saying that he could not go back to his home country as his life would still be in danger.

12.  The Judge proceeded to dispose of the applicant’s application on paper.  Upon consideration of the Director’s and the Board’s respective decisions, the Judge dismissed the applicant’s application on 10 March 2023 for the reasons set out in [14] – [17] of his decision:

“14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicant’s case, the Board dismissed his claim upon his own application to withdraw his appeal/petition and upon his written confirmation that his problem in his home country had been resolved and that it was safe for him to return to Vietnam, and after having acceded to his application, the appeal procedure came to an end and the Board became functus officio, and that there is no delegated power or jurisdiction for the Board to re-open or reinstate the cancelled, withdrawn and/or abandoned appeal notwithstanding the lack of determination on its merits, as otherwise not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying to proceed with the appeals: see Re Das Purnima Rani [2019] HKCA 669.

16. If for whatever reason that more than 4 years later the Applicant now wants to challenge the Director’s decision in rejecting his non-refoulement claim, even putting aside the same problem of his serious delay with his application, the fact is that it had been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim on the factual basis of his own case at the highest is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification in the first place to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their respective part to apply high standards of fairness in the consideration and assessment of the Applicant’s claim or of his application to withdraw his appeal/petition.”

Appeal to this Court

13.  On 21 March 2023, the applicant filed a Notice of Appeal in which he set out the following grounds:

(1)  If the applicant returns to Vietnam, he will be tortured, beaten or even killed because the creditors and gangsters in Vietnam are different from those in Hong Kong, and most of them are cruel and violent.  They disregarded the law and are willing to kill people.

(2)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles.  The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

14.  In his supporting affirmation, he deposed:

“…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.

Additionally, I was informed that the [Director] and the [Board] did not see the grounds to reverse their decision.”

Legal principles

15.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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 on appeal, which operates as a re-hearing, 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.  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 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 refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

16.  The grounds provided by the applicant in his Notice of Appeal are just bare assertions without particulars or basis.  He did not in his Notice of Appeal or his supporting affirmation provide any proper ground of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. 

17.  In any event the Judge had duly considered the merit of the applicant’s case by considering first, the Director’s decision in which it was clear that the dispute was private in nature without any state element, and there was no evidence to suggest that the applicant’s creditors had any real intention to cause any serious harm to him, and therefore the risk of harm upon his return to Vietnam was assessed to be low, and secondly, the Board’s decision.  In this regard, the Judge had rightly explained that the Board had determined and disposed of the applicant’s appeal upon what appeared to be a proper and valid withdrawal of the appeal by him, thus the appeal was no longer extant, and the Board had become functus officio with no jurisdiction to take any further step on the applicant’s appeal: see Re Das Purnima Rani [2019] HKCA 669.  As such and in the absence of any evidence from the applicant that his withdrawal was invalid, or there was any error of law or procedural unfairness in the Board’s decision, there is no basis to challenge the Board’s decision.

18.  Having considered the materials before us, we are of the view that the Judge’s observations and findings are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

19.  For the above reasons, this appeal is dismissed.