RE DINH VAN HOC

CACV 152/2021

[2021] HKCA 1461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 152 OF 2021

(ON APPEAL FROM HCAL NO. 1447 OF 2018)

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J U D G M E N T

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

I. The appeal

1.  This is an appeal against the decision of Deputy High Court Judge C P Pang who refused on 25 March 2021 to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).  The applicant agreed to have the appeal disposed of on paper by two judges.

II.      Background

2.  The applicant is a national of Vietnam.  He arrived in Hong Kong from the Mainland illegally in January 2013.  He then raised a non-refoulement claim in September 2013 but withdrew the claim.  He came to Hong Kong illegally again from the Mainland in March 2015 and raised a non‑refoulement claim in April 2015 on the basis that if he was to return to Vietnam he would be harmed or killed by his creditor.

3.  The details of the applicant’s claim have been summarized by the Deputy Judge at [2]-[4] of the CALL‑1 Form.

III.     The Director’s Decision

4.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 14 October 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.     The Board’s Decision

5.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 30 May 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 25 June 2018.

6.  The Board found that the creditor merely forced the applicant to sign an acknowledgment of the debt and did not cause any violence or harm towards the applicant’s parents.  The intention of the creditor was to seek repayment and not to harm the applicant.  Whether physically or mentally, there is no evidence to support any allegation that the applicant suffered any minimum level of severity against torture.  The alleged dispute was a private matter and state actors were not involved.  There was no evidence of state acquiescence.  Internal relocation was possible.

V.      Decisions of the Judge

7.  The applicant filed a Form 86 with a supporting affirmation.  He stated that he never received the notice of the Board hearing as the notice was sent to his old address.  He claimed that the Director never medically examined him.  He claimed that the Board quoted incorrect material.  He claimed that the Board misunderstood viability of internal relocation.

8.  The Deputy Judge on 25 March 2021 held that the Board in its decision did not dispute the primary facts as alleged by the applicant.  The Board dismissed the applicant’s case due to a failure to find any real risk of him upon being refouled.  The applicant made the bare allegation that he did not receive the notice of the hearing.  Further, it was the applicant’s duty to provide an updated address to the Board.  The Judge held medical examination would not serve any useful purpose and, in any event, the harm as alleged did not reach minimum level of severity.  Other complaints alleged were simply bare allegations.    

VI.     Grounds of appeal

9.  The applicant in his notice of appeal stated the following :

‘ the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.’

10.  The applicant did not provide specifics or elaboration to his complaint.

11.  In the applicant’s affirmation, he stated that there is a good ground of appeal not necessarily considered at the stage of applying for leave for judicial review.  He then annexed a copy of the CALL-1 Form decision.  No grounds of appeal were mentioned.

12.  In the applicant’s written submissions, the applicant repeated factual matters that have been dealt with by the Board and the Judge.  He then recited various case authorities that are used in non‑refoulement matters without specifics or particulars as to how those legal principles applied to his personal circumstances.

VII.   Our view

13.  We will repeat the approach of this Court in dealing with cases of this nature :

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 the 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 their decisions.

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.  In the determination for 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 a 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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.  In our view, there is no merit in the applicant’s appeal.  The Deputy Judge had provided his reasons of refusal in his decision.

15.  W e see no error in the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.