RE TA DUY HUNG

CACV 288/2020

[2020] HKCA 983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 288 OF 2020

(ON APPEAL FROM HCAL 1878/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 15 July 2020, Deputy High Court Judge KW Lung (“the 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 (“the Board”) dated 5 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 2 December 2016 rejecting the applicant’s non-refoulement claim.

2.  On 23 July 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Vietnamese national.  He arrived in Hong Kong illegally on 24 May 2015 and was arrested by police on 27 May 2015.  On 25 June 2015 the applicant 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 creditor who was a loan shark.  The factual background was succinctly summarized by the Judge in [5] – [6] of the Form CALL-1 ([2020] HKCFI 1550).

5.  By Notice of Decision dated 2 December 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 30 July 2018.  The Board accepted the applicant’s evidence on the facts of the claim.  However, based on those facts, the Board found that there was no real risk of harm in the event of refoulement and the matter involved a private debt dispute.  The Board also concluded that state protection was available.  As the risk was of a localized nature and the Board found that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 5 September 2018 on all the applicable grounds.

Decision of the court below

7.  On 10 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The applicant did not specify any grounds for seeking relief; in his affirmation in support of his Form 86, he stated he was very afraid that his creditor might inflict more serious harm.

8.  The Judge held a hearing on 31 December 2019 at which the applicant attended in person.  On 15 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [18] of the Form CALL-1 ([2020] HKCFI 1550, HCAL 1878/2018) as follows:

“ 14.  The applicant appeared before me and confirmed that he was treated fairly by the immigration officer and the Adjudicator of the Board.

15.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.  He confirmed that he understood the Board’s findings and he had no comment on them,

17.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

18.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.” [sic]

Appeal to this Court

9.  In his Notice of Appeal of 23 July 2020, the applicant’s ground of appeal was that the Board and the Director had not weighed or realized the gravity of his circumstances in considering his claim.

10.  On the same day, the applicant agreed in writing for the appeal to be disposed of on paper by the Court without any oral hearing.

11.  Pursuant to the Court’s directions of 8 October 2020, the applicant lodged his written submissions on 14 October 2020.  Those submissions consist largely of general statements of law quoted from case law without identifying how they specifically relate to or apply in this case.  At paragraph 7 of his submissions, the applicant submitted that the Board acted in a procedurally unfair manner by failing to properly assess his credibility.  But he did not provide any details or particulars as to how the Board failed to properly assess his credibility.

Legal principles

12.  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 were 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.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

13.  As mentioned, the applicant did not provide any particulars in support of his arguments and did not identify any specific errors in the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its finding that there was no real risk of harm to the applicant if he were to return to Vietnam.  The Board also concluded that state protection was available, that the risk was of a localized nature and that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

15.  Since the Board accepted the applicant’s evidence on the facts of the claim, the applicant’s argument that the Board failed to properly assess his credibility is misconceived.

16.  Having considered the materials before us, we are of the view that the Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

17.  For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed.