NGUYEN THI DAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 306 /2020

[2021] HKCA 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 306 OF 2020

(ON APPEAL FROM HCAL NO 1839 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.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 14 July 2020^[1]. By his 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. This appeal is dealt with on paper because the applicant has consented to a disposal on paper by the court without an oral hearing.

2.  The applicant is a Vietnamese national.  She is 48 years old.  She came to Hong Kong illegally on 28 December 2015 and surrendered to the Immigration Department.  She lodged a non-refoulement claim which was received by the Immigration Department on 3 March 2017.  Her claim was made on the basis that she would be harmed or killed by the creditor of her former husband because her former husband was unable to repay the debts.

3.  The applicant lodged a notice of appeal on 27 July 2020 and consented to the disposal of her appeal on paper by the Court of Appeal.  Pursuant to the direction of the Registrar of Civil Appeals on 12 October 2020, she has lodged her submissions on 21 October 2020.

The Director’s decision

4.  By a Notice of Decision dated 30 November 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 was not satisfied that the applicant’s risk of being killed by the creditor is real and foreseeable as there were only verbal threats and the applicant had never been physically harmed by the creditor.  The Director considered that the creditor has no intention to harm or kill the applicant.  The Director further considered that the alleged problem is solely a private dispute without any evidence of government involvement.  The Director also held that the availability of state protection and internal relocation alternatives in Vietnam further lowers or negates the level of risk.

The Board’s decision

6.  The applicant appealed to the Board against the Director’s decision. Having considered the case of ST v Betty Kwan & Anr [2014] 4 HKLRD 277, the Board was satisfied that the appeal can be justly determined without a hearing as the available materials were sufficient for the consideration and assessment of the appeal and clarification on additional facts or points of law was not necessary.  Thus, the Board determined the appeal on paper without a hearing. 

7.  The Board assessed that there was no evidence to show that the applicant had experienced any physical or mental ill-treatment which attained the requisite level of severity.  The Board also held that the creditor did not have any intention to harm the applicant and the alleged ill-treatment is solely related to private dispute.  The Board further considered that internal relocation alternatives and reasonable state protection are available to the applicant in Vietnam.  Thus, the Board held that the appeal failed on all applicable grounds on 24 August 2018. 

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 4 September 2018 to seek leave to apply for judicial review against the decision of the Board.  A second affirmation was filed on 24 July 2019.  In the leave application, she reiterated her fear of being harmed by the creditor but did not set out any ground for her intended judicial review.

The judge’s decision

9.  The applicant appeared before DHCJ K W Lung on 11 December 2019.  Leave was granted to the applicant to amend her Form 86 to put the Board as the putative respondent and the Director as the putative interested party.  At the hearing, the applicant submitted that there was no hearing before the Board, she indicated that she understood the reasons for refusal and had no further comment to the Board’s decision other than stating that she did not want to go back to Vietnam.  The judge held that the applicant failed to show she has a reasonable prospect of success in her intended judicial review and dismissed the leave application on 14 July 2020.

Grounds of appeal

10.  The applicant stated these grounds of appeal in her notice of appeal:

(1)  The gravity of her circumstances has not been weighed or realized by the putative respondents.

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

11.  In her written submissions, she reiterated that she was threatened by her former husband’s creditor.

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.

14.  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.

Analysis and disposition

15.  Under section 12 of Schedule 1A of the Immigration Ordinance (Cap 115), the Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing. Furthermore, the applicant failed to adduce any evidence to rebut the Board’s findings.  Therefore, her ground pertaining to the lack of oral hearing before the Board is unmeritorious. 

16.  The applicant’s complaint that the gravity of her circumstances has not been weighed or realized is just a bare assertion without particulars and evidence in support.  In particular, she failed to demonstrate that there are errors of law or procedural unfairness or irrationality in the decisions of the Board or the Director.  She also failed to identify that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in his decision.

17.  For the above reasons, there is no merit in the appeal and no realistic prospect of success in the intended application for judicial review. We therefore dismiss the appeal.