TRAN BINH LUAN v. TORTURE CLAIMS APPEAL BOARD

CACV 513/2020

[2021] HKCA 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 513 OF 2020

(ON APPEAL FROM HCAL NO 725 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.  The applicant lodged a Notice of Appeal on 25 September 2020 against the decision of Deputy High Court Judge Bruno Chan dated 15 September 2020[1]. By that 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 his non‑refoulement protection claim.

2.  The applicant is a national of Vietnam.  He is 32 years old.  He was previously repatriated to his home country from Hong Kong back in 2010.  He entered Hong Kong illegally again on 16 June 2014 and was arrested by the police on 23 June 2014.  He raised a non-refoulement claim on 4 July 2014 on the basis that he and his wife (the appellant in CACV 512/2020) will be harmed or killed by their creditors if they return to Vietnam as they are unable to repay the debts. 

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  He lodged his written submissions on 25 January 2021 pursuant to the directions of the Registrar of Civil Appeals. 

The Director’s decision

4.  By a Notice of Decision dated 25 April 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 assessed that the level of risk of harm the applicant and his wife would face is low as they had only received verbal threats from the creditors but had not encountered any physical harm.  The Director further found that their problem is a private matter with nothing to do with the Vietnamese government or authorities.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

The Board’s decision

6.  Their appeal against the Director’s decision was heard before the Board on 2 February 2018.  The Board found that the applicant and his wife fabricated their claims because of significant inconsistencies in their evidence.  In particular, their evidence concerning the business they operated and the loans they borrowed was significantly different and was inconsistent with their own previous accounts of the events.  The Board did not accept that they experienced any problems or harm from the creditors and considered that there is no real risk they would face any of the proscribed forms of harm should they return to Vietnam.  Thus, the Board decided that they failed to substantiate their non-refoulement claims on the applicable grounds and rejected their appeal on 2 March 2018.

The intended judicial review

7.  The applicant and his wife filed their respective Form 86 and affirmation on 25 April 2018 to seek leave to apply for judicial review against the decision of the Board.  In their respective applications, they did not put forward any specific grounds for the intended challenge but only reiterated the harm they would face if they return to Vietnam.

The judge’s decision

8.  DHCJ Chan considered the leave application on the papers as the applicant did not request for an oral hearing.  The judge found that the applicant does not have any reasonably arguable basis to challenge the findings of the Board as he failed to identify any error of law or procedural unfairness in the Board’s decision.  The judge considered both the decisions of the Director and the Board and found no error of law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness.  The judge held that there is no prospect of success in the intended judicial review and dismissed the leave application on 15 September 2020.

The grounds of appeal   

9.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 25 September 2020:

(1)  the gravity of his circumstances has not been weighed or realized by the putative respondents in considering his non-refoulement claim;

(2)  he should be given an opportunity to plead his case properly.

10.  His further submissions in writing may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim;

(2)  the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing his credibility;

(3)  the judge found no errors of law in the Board’s decision but they drew only inferences negative to his case from the Country of Origin Information which is not a balanced view of the information;

(4)  the judge failed to acknowledge the presence of “state acquaintances”. The Vietnamese army holds the power in Vietnam and will not yield to the people.

Legal Principles

11.  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.

12.  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.

Analysis and disposition

13.  The applicant’s grounds of appeal are unmeritorious.  In particular, the applicant and his wife were given sufficient opportunities to plead their case both in writing and orally at the screening interviews with the immigration officer as well as at the Board hearing.  As can be seen from paragraphs 46 to 61 of the decision, the Board had considered the evidence thoroughly and given detailed explanations in the assessment of credibility.  The applicant’s claim was rejected by the Board as it was found to be credible, not on the basis of analysis of the Country of Origin Information.  The Board’s decision is well founded and the applicant does not have any reasonably arguable basis to challenge the Board’s findings.  In addition, the applicant has not given any evidence to show that the army or the Vietnamese government has anything to do with his alleged problem.  

14.  There is no merit in the appeal or the intended application for judicial review.  We therefore dismiss the appeal.