NGUYEN VAN TRUNG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 84 /2023, [2023] HKCA 1047

On appeal from [2023] HKCFI 442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 84 OF 2023

(ON APPEAL FROM HCAL NO 94 OF 2019)

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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.  On 14 March 2023, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 20 March 2023.

2.  The applicant is a national of Vietnam. He is 41 years old. He had previously been repatriated to Vietnam twice on 5 February 2002 and 12 February 2004. He alleged that he again entered Hong Kong illegally via the Mainland on 10 October 2014 and surrendered to the Immigration Department three days later on 13 October 2014. On the same day, he raised a non-refoulement claim on the basis that he would be harmed or killed by a creditor named “Hung” as he was unable to repay an outstanding debt.

The Director’s decision

3.  The Director of Immigration (“the Director”) was of the view that the applicant’s level of risk of serious harm from his creditor was low. Despite the alleged attacks on the applicant, it was clear that Hung was using them as scare tactic to compel the applicant to repay the loan. These experiences and Hung’s actions indicated it was unlikely there would be any future risk of harm to the applicant. The Director also noted the dispute between him and Hung was private in nature and did not involve the state. The Director held there was state protection available and internal relocation was a viable option based on credible and objective information obtained by the Director.

4.  Therefore, by a Notice of Decision dated 29 December 2016, the Director rejected the applicant’s claim under all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board. Whilst the Board found the applicant’s alleged loan from Hung to be factually consistent, it regarded such claim as purely private in nature. Based on credible and objective country of origin information, the Board was satisfied that the Vietnamese government had taken considerable efforts to combat loan sharks and concluded that adequate state protection was available.

6.  Therefore, the Board found the applicant had failed to establish he is entitled to non-refoulement protection under any of the applicable grounds under the Unified Screening Mechanism and rejected his appeal on 31 December 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 10 January 2019 to seek leave to apply for judicial review against the decision of the Board. There were no grounds provided in the Form 86. In his supporting affirmation, he reiterated the risk of harm he would face in Vietnam. The applicant further deposed that he would be subject to torture or even killed by the creditor and his subordinates as he was still unable to repay the alleged loan. He also annexed a copy of the decision of the Board.

The judge’s decision

8.  The judge considered the application on paper as the applicant did not request an oral hearing. Having rigorously examined the Board’s decision, the papers and the evidence with anxious scrutiny, the judge was satisfied that the Board had correctly set out the law and identified the issues and a very high standard of fairness was observed in rejecting the applicant’s evidence and his account. Furthermore, the judge was unable to detect any error of law or procedural unfairness at any stage of the non-refoulement proceedings, and the decision of the Board was not Wednesbury unreasonable or irrational. Therefore, the judge concluded that the applicant’s intended challenge does not have any realistic prospect of success and dismissed the leave application on 14 March 2023.

Grounds of appeal

9.  In the Notice of Appeal, the applicant advanced mainly three grounds of appeal which may be summarised as follows:

(1)  The applicant’s life will be seriously threatened if he is refouled to Vietnam because Vietnamese creditors and gangsters are different from those in Hong Kong, the former being cruel and violent. They disregard the law and are willing to kill people;

(2)  The Director’s suggestion that the applicant can relocate to another place in Vietnam is completely unfeasible as his health is not good and he is “not an active person”, these factors would cause a disadvantage to him in the labour market;

(3)  Even if the applicant relocates, the creditor would still be able to find his new residence due to the nationwide network of gangsters and clandestine connections with corrupt people in the government and the police.

10.  In the applicant’s supporting affirmation, he only asserted “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review” but did not give any details or elaborate on it.

11.  Directions were given by the Registrar of Civil Appeals on 20 March 2023 to lodge skeleton submissions on or before 3 April 2023. The directions also stipulated that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to rely on written submissions. The applicant has not lodged his written submissions up to present. Upon the expiry of the time for complying with the Registrar’s directions, the applicant is deemed to have consented to the disposal of his appeal on paper without an oral hearing. We therefore proceed to consider his appeal accordingly.

Legal principles

12.  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.

13.  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 decision of the judge, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

14.  The applicant’s grounds against the Director and the Board were raised for the first time in the present appeal. As the Court of Appeal has repeatedly stressed, an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below and this is equally apposite in an appeal against the refusal of leave to seek judicial review[6]. We shall not entertain these new grounds put forward by the applicant.

15.  As for the applicant’s supporting affirmation, his contention that there is “a good ground of appeal” is a bare assertion and hardly a proper ground of appeal.

16.  In any event, the aforesaid legal principles in Nupur Mst require the applicant to point out with particularity any errors allegedly made by the judge in reviewing the decision of the Board. In this instance, it is plain that the judge had scrutinised carefully the decision of the Board and found no grounds for the applicant to challenge by way of judicial review the fact finding of the Board, which was exclusively within the province of the Board and did not involve any error of law or procedural unfairness.

17.  The applicant hasfailed to give any particulars, elaboration or evidence in support of his grounds of appeal. He also failed to identify any errors of the judge or failure to take account of relevant matters already placed before the court.

18.  As the appeal is devoid of merits, we dismiss the appeal accordingly.