RE NGUYEN THI HOA

CACV 345/2020

[2021] HKCA 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2020

(ON APPEAL FROM HCAL NO 814 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”)  set out in the Form CALL-1 dated 28 July 2020 refusing her leave to apply for judicial review (“the Deputy Judge’s Decision”)  [2020] HKCFI 1625.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 7 May 2018 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 24 August 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  The applicant filed her Notice of Appeal on 10 August 2020.  On the same date, she consented to have this application to be disposed of on paper without an oral hearing.  This is our judgment.

A.  Background

4.  The applicant is a national of Vietnam.  Her last entry in Hong Kong was on 1 November 2013 when she entered illegally from Mainland China.  She surrendered herself to the Immigration Department on 19 June 2014.  On 19 June 2014 and 18 July 2014 respectively, she lodged her non-refoulement claim.

5.  The details of the applicant’s claim and her personal background were set out in paragraphs 7 - 8 of the Director’s Decision, and paragraph 22 of the Board’s Decision.

6.  The applicant claimed that she would be harmed or killed by her business partner, Lien, upon refoulement.  The applicant and Lien were business partners of a mining company.  In around June 2011, one of their employees died and three other workers were injured at the mining site.  Compensations were paid by both of them to the victims or their family members.  However, Lien claimed that, since the applicant was the supervisor of the site, she should bear full responsibilities over the compensations.  Thereafter, Lien started chasing the applicant for repayment.  However, the applicant was unable to pay.  At the end of 2011, Lien and her followers came to the applicant’s house and threatened to kill the applicant.  Out of fear, the applicant fled to Hong Kong for protection.

B.  The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3], and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  The Board, having considered all the materials, decided not to hold an oral hearing and proceeded to consider her appeal on paper (paragraphs 16 - 21 of the Board’s Decision).  The Board found that the threats from Lien were merely verbal without inflicting any bodily harm on the applicant.  Further, the dispute between the applicant and Lien was private in nature without any state involvement (paragraphs 23 - 43 of the Board’s Decision).  In any event, internal relocation was available to the applicant (paragraphs 44 - 46 of the Board’s Decision).  Thus, the Board dismissed her appeal.

C.  The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 10 May 2018 seeking leave to apply for judicial review against the Board’s Decision.  She did not request for an oral hearing.  She also did not state any grounds of review in her Form 86 or supporting affirmation.

10.  After considering the materials before him, the Deputy Judge dismissed the applicant’s leave application with reasons set out at [12] - [19] of the Deputy Judge’s Decision:

“12. The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524. 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. While the Court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

13. As the Director’s decision has been superseded by the Board’s decision, the Director’s decision is not amenable to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the Court examines the decisions of the Director and the Board, it will only focus on the latter’s decision.

14. By a letter dated 12 May 2020, the Court invited the applicant to submit information including any submissions that she would like to make. She replied in a letter saying that all her statement had been lost and she had no further information to provide.

15. In the present case, the Board in fact found that on the accounts of primary facts claimed by the applicant, she would not face any real risk of harm, if refouled. It further found that state protection was available and internal relocation was a viable option for the applicant.

16. As mentioned, assessment of evidence, COI and the risk of harm are within the province of the Board (and the Director), this Court will not interfere with the decisions unless there is a public law ground for the Court to do so.

17. It is noted that the Board did not hold an oral hearing. It was a determination after considering the principles set out in ST v Betty Kwan [2014] 4 HKLRD 277. The Board gave detailed explanation for such decision [16-21]. The Board correctly applied the principles and considered all relevant factors for its decision.

18. The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in her affirmation to suggest how the Board erred in the public law sense. Nor was there a challenge with regard to procedural regularity and fairness. Bearing in mind that the applicant personally attended the screening interview with the immigration officer and the Board accepted the version of facts as advanced by the applicant, I do not find the course adopted by the Board to be irregular or unfair.

19. 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, irrational findings, or procedural unfairness in either of them, nor any failure of them to apply high standards of fairness.”

D.  Grounds of appeal

11.  The applicant’s ground of appeal in her Notice of Appeal was that:

“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by putative Respondent while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.” [sic]

12.  In her supporting affirmation filed on the same date, she simply submitted that there was a good ground of appeal that was not considered by the Deputy Judge.  Yet, she failed to elaborate on what the said good ground was.  Further, the applicant failed to lodge her written submissions as directed by the Registrar of Civil Appeals.

E.  Discussion

13.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  They can be summarized as follows.

14.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

15.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an 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.

16.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1)  of the Rules of the High Court (Cap 4A).

17.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

18.  As set out at [11] and [12] above, the applicant has not advanced any grounds showing any errors in the Deputy Judge’s Decision.  There are no viable grounds of appeal.  On this basis alone, we would dismiss her appeal.

19.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

20.  For all these reasons, we dismiss the appeal.