NGUYEN XUAN NGHIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 381/2024, [2025] HKCA 206

On Appeal From [2024] HKCFI 2214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 381 OF 2024

(ON APPEAL FROM HCAL NO 679 OF 2020)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 5 September 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 March 2020, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 December 2019.

BACKGROUND

2.  The Applicant is a national of Vietnam. He claimed to have entered Hong Kong illegally on 3 September 2019. He surrendered himself to the Immigration Department on 12 September 2019. On 2 October 2019, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor (Nguyen Van Ben) because he was unable to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§4-9 of the CALL-1 Form.

3.  By a Notice of Decision dated 13 December 2019, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The Applicant appealed the Director’s decision to the Board. On 19 March 2020, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§14 and 15 of the CALL-1 Form, as follows:

“[14] The Board found the [Applicant] was only attacked once and there was no evidence suggesting that the creditor was serious in carrying out his threat [40]. Meanwhile, the [Applicant’s] claim about the unavailability of state protection was purely a speculation as he had never sought any assistance from the higher authority [42].

[15] Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [6]-[15], [41], [43]-[50]. In any event, internal relocation would also be available [51]-[53].”

THE JUDGE’S DECISION

5.  On 17 April 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In his supporting affirmation of the same date, the Applicant merely stated that he could not go back to his home country because his life would be in danger over there.

6.  On 5 September 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[19] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[20] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[22] On the reasons given, the Board considers that the [Applicant] has not shown that he will be subjected to any of the applicable risks if he returns to Vietnam. Also, internal relocation is a viable option for him.

[23] The [Applicant] has raised no valid reason to challenge the Board’s Decision.

[24] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal filed on 19 September 2024, the Applicant repeated his claim that his life would be seriously threatened, and he would probably die if he returned to Vietnam, because most creditors and gangsters in Vietnam were cruel and violent, and they disregarded the law and were willing to kill people to satisfy their anger and ferocity. He disagreed with the Director’s assessment that he could move to another location in Vietnam to avoid his creditor for various reasons, and alleged that the Immigration Department did not consider his human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

8.  In his affirmation of the same date, the Applicant stated that “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, but he failed to identify what that ground might be.

9.  Also on 19 September 2024, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

10.  The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 19 September 2024.

DISCUSSION

11.  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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

12.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

14.  The Applicant’s appeal has no merit, and is dismissed.