RE NGUYEN CONG THIENG

CACV 384 /2024, [2025] HKCA 128

On appeal from [2024] HKCFI 2423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 384 OF 2024

(ON APPEAL FROM HCAL NO. 855 OF 2024)

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JUDGMENT

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

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 September 2024^[1] refusing to extend the time for applying for judicial review and dismissing his application for leave to apply for judicial review.  The intended judicial review was in respect of the decision the Torture Claims Appeal Board (“the Board”) dismissing his appeal against the decision of the Director of Immigration (“the Director”) rejecting his non‑refoulement protection claim.

2.  Despite directions given by the Court, the applicant did not lodge any written submission to support his appeal.  He had consented to the Court of Appeal disposing of his appeal on the papers without an oral hearing.      

The applicant’s claim

3.  The applicant is a Vietnamese national aged 33.  In 2017, he entered Hong Kong illegally and surrendered to the Immigration Department. He was repatriated to Vietnam on 20 June 2017.  On 15 September 2020, he was arrested by the police, after re-entering Hong Kong illegally.  He subsequently raised a non-refoulement claim based on fear of being harmed or killed by a moneylender due to his inability to repay his debt to him.  His claim was set out in details in [6] of the Director’s decision. 

4.  In gist, the applicant claimed that he obtained a loan from a moneylender in connection with his shop business.  Since September 2018, the applicant was unable to keep up with the interest payment because business was not good.  Between November 2018 and January 2020, there were three occasions in which the moneylender and his followers assaulted the applicant with wooden sticks.  They also threatened to kill him if he did not make repayment.  Fearing for his personal safety, the applicant’s parents arranged for the applicant to flee to Shenzhen from where he sneaked into Hong Kong by boat.           

The Director’s and the Board’s decisions

5.  By a Notice of Decision dated 10 August 2021, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 9 May 2023.  The applicant was absent at the hearing.  The Board sent a written notification to the applicant, informing him that unless within seven days from the giving of the notice, he provided a written explanation for his absence and the explanation was accepted by the Board, his appeal would be determined in his absence.  The applicant did not provide any explanation within the prescribed time.  The Board therefore proceeded to deal with the appeal, and by a decision given on 20 December 2023 dismissed the appeal.      

7.  In gist, the Board took into account the applicant’s case as set out in the non-refoulement claim form and his evidence during the screening interview.  For the reasons given at [29] to [49] of its decision, the Board did not accept the applicant’s evidence and case, finding that the evidence about the loan was ambiguous and unclear, the evidence on the collection of debt to be illogical and full of inconsistencies, and the evidence on the assaults lacking in particulars and not credible.  The Board further considered that even if his evidence were accepted, the likelihood of the perceived risk of harm to be materialized was low, and state protection is reasonably available, which would further reduce the risk of harm that the applicant might face.  The Board concluded that the applicant failed to prove his entitlement to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

8.  The applicant filed a Form 86 and an affirmation on 29 May 2024 to seek leave to apply for judicial review against the decision of the Board.  In his supporting affirmation, the applicant stated that the Board underestimated the harm and torture that had occurred to him and that he was entitled to non-refoulement protection under the BOR2 and CIDTP (BOR3) risk grounds. 

9.  The applicant’s application was made out of time.  Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose. The applicant’s application was more than two months late.  In his supporting affirmation, he sought an extension of time to apply for judicial review, explaining that he only received the Board’s decision in May 2024, he needed help as he did not understand English, and he was ignorant of the time limit and legal procedure.

10.  The Judge heard the leave application at a hearing on 22 August 2024.  At the hearing, the applicant further explained that he was imprisoned for a conviction of theft during January to June 2024.  By a Form CALL-1 dated 12 September 2024, the Judge refused to extend time and dismissed the application for the reasons given iv [14] to [18] as follows: 

“14. While accepting that the Applicant had been in prison during the 3-month period within which he was required to file his application, given the fact that he could have obtained assistance from the stationed welfare officers with his application, I am unable to see any good or valid justification for his such serious delay.

15. As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended application either in his application or at the hearing, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

The appeal

11.  By a notice of appeal dated 23 September 2024, the applicant appealed the Judge’s decision to this court. 

12.  The grounds of appeal in the notice of appeal stated that: (1) the creditors and gangsters in Vietnam are cruel, violent and will readily kill people; the applicant will be tortured, beaten or killed by his creditor if he returns to Vietnam; (2) internal relocation is not feasible because the applicant will face many difficulties and obstacles, he will be disadvantaged in the labour market and he may not be able to adapt and make a living; (3) the gangsters will be able to track the applicant as they have a nationwide network and help from the corrupt government officials and police; and (4) the Director has disregarded the applicant’s human right. 

13.  The applicant also filed an affirmation in which he stated that there was a good ground of appeal that was not being considered at the leave application stage.  We will not consider this affirmation as no leave has been given for the applicant to file new evidence in this appeal.  In any event, the affirmation only makes a vague assertion and has not even identified what is the ground of appeal referred to.

Our reasons for decision

14.  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.  In sum, 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.

15.  We are of the view that the matters stated in the notice of appeal do not constitute viable grounds of appeal: 

(1)  The Board had found the applicant’s evidence incredible and rejected it in its entirety.  The applicant has not provided any valid basis for challenging the Board’s findings.  In the circumstances, his assertion that he will be harmed by his creditor and his people has no factual foundation and cannot stand. Likewise, his assertion that his human right has not been considered must also fail.    

(2)  The Board also found, as an alternative, that even on the applicant’s case, the risk of harm was low.  While the applicant asserted in the affirmation in support of the Form 86 that the Board had underestimated the harm and ill-treatment he had received, he has not provided any elaboration or pointed to any error or basis for challenging the Board’s assessment of the future risk of harm. 

(3)  Importantly, the applicant has not identified any error in the Judge’s reasoning and decision. 

(4)  Given that his intended judicial review is bound to fail, the Judge was correct not to extend the time and dismiss his application for leave to apply for judicial review.

16.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.