RE TRAN CONG DANG

CACV 544/2020

[2021] HKCA 592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 544 OF 2020

(ON APPEAL FROM HCAL 961/2018)

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JUDGMENT

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

1.  This is an appeal against the decision of Deputy High Court Judge CP Pang (“the Judge”) dated 28 September 2020 (“the Judge’s Decision”) [2020] HKCFI 2391, refusing leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) of 13 March 2018 (“the Board’s Decision”), which rejected his non-refoulement claim.

2.  On 6 October 2020, the Applicant gave written consent for this appeal to be processed on the paper by the court without an oral hearing. 

The Background

3.  The Applicant is a national of Vietnam.  He came to Hong Kong illegally through Mainland China on 20 September 2014.  He surrendered to the Immigration Department on 22 September 2014. 

4.  He lodged a non-refoulement claim based on threat from his creditor in Vietnam due to his inability to pay debt. 

5.  The details of the Applicant’s claim and his personal background were set out in paragraphs 3 to 15 of the Board’s Decision. 

The Board’s Decision

6.  After his claim was rejected by the Director of Immigration, the Applicant appealed against the Director’s Decision to the Board.  He failed to attend the hearing before the Adjudicator on 14 July 2017. 

7.  In its decision of 13 March 2018, the Board rejected the Applicant’s claim because it found that threat of the creditor to the Applicant did not reach the minimum level of severity and there is no substantial risk of harm on refoulement.

The Judge’s Decision

8.  The Applicant filed a Form 86 on 29 May 2018, seeking leave to apply for judicial review against the Board’s Decision. 

9.  The Applicant only repeated his personal circumstances in his affirmation of 29 May 2018.  He did not state any public law ground for seeking judicial review in his Form 86 or his affirmation.  

10.  The Judge refused to grant the Applicant leave to apply for judicial review and explained in paragraphs 11 to 17 of the Form CALL-1 [2020] HKCFI 2391.  In particular, he said at [15] and [16]:

“ 15.  The application form and affirmation of the applicant only contained a vague allegation against the Board without any particulars or evidence in support.  He said the adjudicator was biased on the assessment of the applicant’s integrity.  In fact, the Board took a view on primary facts most favourable to him.  It only disagreed on the assessment of risk flowing from the events.  The complaint is wholly without merit.  It has no reasonably arguable basis to challenge the findings of the Board.

16.  I agree that even on the applicant’s own account, the past ill treatment by threats of the creditor (without using actual violence) was of low intensity and frequency.  It did not reach the level of severity required to constitute torture or CIDTP.  He did not report the incidents to the local police or authorities.  He did not even alert his son, who is still residing in Vietnam, about the debt problem he had.  After he had left Vietnam, his family members remained safe.  There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled.  The determination of the Board is eminently reasonable.”

The present appeal

11.  The Applicant filed the Notice of Appeal on 6 October 2020.  After repeated reminders from the Court, he filed his submissions on 29 March 2021.  In these documents, the Applicant did not set out any ground pinpointing any errors of law on the part of the Judge. Instead, the Applicant reiterated his factual allegations which had been raised before and duly considered by the Board.   

Discussion

12.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigraiton [2018] HKCA 524 at [14] which had been recited by the Judge at [11] of his decision. 

13.  Further, 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 determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

14.  If no viable ground is put forward by an appellant to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.   

15.  In light of the above-mentioned principles, we do not find any merits in the Applicant’s appeal.    

16.  In the materials placed by the Applicant before the Judge and before us, he had not formulated any specific public law ground to challenge the assessment by the Board over the lack of substantial risk of harm.  The Board gave proper reason at paragraphs 34 to 43 and 49 to 53 of its decision in coming to that assessment. 

17.  Having applied our mind to those reasons with anxious scrutiny[1], we are unable to see any basis for suggesting that the findings of the Board were irrational. 

18.  For the reasons given above, we dismiss the appeal.