DO DUY MINH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 314/2022

[2022] HKCA 1858

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2022

(ON APPEAL FROM HCAL NO 657 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 2 August 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2355).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 1 March 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 November 2016 rejecting his non-refoulement claim.

3.  We heard the appeal on 5 December 2022.  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of Vietnam.  He last entered Hong Kong illegally on 10 August 2014 and surrendered to the Immigration Department on 2 September 2014.  On the same day, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor and his men given his unpaid debts.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] to [5] of the Leave Decision.

5.  By a Notice of Decision dated 11 November 2016 (“the Director’s Decision”), the Director rejected the applicant’s non‑refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that his non‑refoulement claim was not substantiated.

6.  The applicant then appealed against the Director’s Decision to the Board.  The applicant attended the hearing on 6 September 2018. Having assessed and considered the totality of the evidence, the Board found that the applicant’s claim was not credible.  Although the applicant claimed that he feared that he would be subjected to serious harm or even killed by his creditor, the Board found that on various occasions, the applicant had returned to Mong Cai (芒街) and Dong Xing (東興), and that those acts were inconsistent with his alleged fear of harm from his creditor.  Alternatively, even if the applicant’s evidence were accepted, the Board noted that the applicant had not heard from the creditor since 2014 and that there was no evidence that the creditor was still searching for the applicant.  Insofar as his fear that he would be arrested by the local authorities as his two brothers passed away during imprisonment upon refoulement back to Vietnam, the Board found that the applicant did not know any details as to why his brothers were imprisoned in Vietnam or why they passed away.  Given that there was no evidence suggesting that the applicant was monitored by the authorities or that he would be arrested once refouled, the Board considered that the applicant’s alleged fear that he would be arrested by the local authorities was merely his own surmise. Further, having assessed the Country of Origin information (“COI”), the Board found that state protection and internal relocation would be available to the applicant.  Accordingly, the Board considered that the applicant had failed to substantiate his claim on all applicable grounds and dismissed his appeal.

The Leave Decision

7.  On 8 March 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.  No ground of review was provided in his Form 86.  In his supporting affirmation, he only stated it would be dangerous for him to return to Vietnam owing to his unpaid debts as his creditor and his subordinates would inflict serious harm or even kill him. He further claimed that the local authority would not spare him given the background of his family members.  As the applicant did not request for an oral hearing, the Deputy Judge considered and determined his application on paper. 

8.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  The Deputy Judge considered that the grounds put forth by the applicant had been considered and determined by the Director and the Board and the applicant failed to point out any error in their decisions.  The Deputy Judge also noted that there was no error of law, procedural unfairness or irrationality in the Board’s Decision.  Accordingly, the applicant’s intended judicial review was without any reasonable prospect of success and as such, the Deputy Judge refused to grant him leave to apply for judicial review against the Board’s Decision.  See [13] to [19] of the Leave Decision.

The Appeal

9.  On 10 August 2022, the applicant filed a Notice of Appeal together with a supporting affirmation in support of his appeal against the Leave Decision.  In his Notice of Appeal, he alleged that it was “unsatisfactory that the Court of Appeal ruled in the judgment of his case that he had no chance of success in reviewing the Board’s Decision” and that he should be given an opportunity to plead his case properly.  He further asserted that internal relocation would not be feasible as there would be many difficulties and his health was not good and he was not an active person.  He also claimed that creditors and gangsters with corrupted connections could find out his new residence.  As they are cruel, violent and disregard the law, they could kill him and it would be dangerous for him to return to Vietnam.

10.  In his supporting affirmation, the applicant further stated:

“1. I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for Judicial Review.

2. Additionally, I was informed that the Director of Immigration and Torture Claims Appeal Board / Non-refoulement Claims Petition Office did not see the grounds to reserve their decisions.

3. I humbly request the Court to exercise its discretion to allow me to appeal.” (sic)

11.  Pursuant to the directions made by the Registrar of Civil Appeals on 21 September 2022, the applicant lodged his written submissions on 25 October 2022.  In those submissions, he advanced five grounds:-

(1)  Taking irrelevant matter into consideration; (“Ground 1”)

(2)  Failure of applying the high standards of fairness; (“Ground 2”)

(3)  Failure of exercising independent assessment; (“Ground 3”)

(4)  Irrationality; and (“Ground 4”)

(5)  Failure to take relevant matters into consideration.  (“Ground 5”)

12.  We heard the appeal on 5 December 2022.  A Vietnamese interpreter was present to provide language assistance.  During the hearing, the applicant claimed that the Immigration Department had been unreasonable in refusing his non-refoulement claim and that he did not know why his claim was refused, and that this Court should review the decision made against him.

Discussion

13.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

14.  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.  It is not the role of the Court of Appeal to examine a 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.

15.  At the outset, except the general assertion that his life would be in danger if he returned to Vietnam, all of the arguments raised by the applicant in the present appeal are new and not raised before the Deputy Judge.  It is well established that general assertions of his fear if refouled do not constitute viable grounds of appeal: see Re Farrukh Zaib [2020] HKCA 408 at [28].  As to the new arguments raised by the applicant, it is also well established that this Court will generally not entertain new arguments which are fact and evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  More importantly, although he disagreed with the Leave Decision, nowhere in his Notice of Appeal, supporting affirmation or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  The grounds raised in his written submissions are matters challenging the Board’s Decision.  Accordingly, his submissions are plainly not proper grounds of appeal and on this basis alone, his appeal must fail. 

16.  In any event, the arguments advanced by the applicant are wholly without merit. 

17.  In relation to those matters raised by the applicant in his Notice of Appeal, given that this Court is determining his appeal for the first time, it is clear that his contention that it “was unsatisfactory that the Court of Appeal ruled in the judgment of his case that he had no chance of success in reviewing the TCAB’s Decision” is mistaken. The applicant also had ample opportunities to present and/or plead his case before the Director, the Board and the Deputy Judge.  Given that he did not request for an oral hearing for his application for leave to apply for judicial review, the Deputy Judge was entitled to determine his application on paper as appropriate.  In any event, it is trite that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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 Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  The contentions raised by the applicant in his supporting affirmation are also vague, confusing and in any event, mistaken.  Accordingly, the contentions made in his Notice of Appeal and supporting affirmation are devoid of merit.

18.  As to Ground 1 of his written submissions, the applicant argued that the Board had misplaced its reliance on the irrelevant matter that the creditors only wanted repayment without paying due regard to the relevant matter that the applicant did suffer grievous bodily harm and mental suffering at the hands of the creditors before fleeing Vietnam; and that as he was beaten by his creditor and his men, on any objective reading, the adjudicator could not have opined that the creditors did not inflict any grievous bodily harm on the applicant and that it was a mere inference or conjecture for the Board to find that the creditor only wanted money and it would do them no good in killing the applicant.  In our view, the applicant’s submissions cannot stand. 

19.  As evident from the Board’s Decision at [31] to [35], the Board refused to accept the applicant’s account as credible as he repeatedly returned to Mong Cai and Dong Xing which were contrary to his alleged fear of harm from his creditor.  The Board also found that even if the applicant’s account were to be accepted, it only showed that he left Vietnam because of his unpaid debt, but as he had repeatedly returned to Mong Cai and Dong Xing which was contrary to his alleged fear, there was no evidence that he would face any real risk of harm as alleged: [34] of the Board’s Decision.  After considering the evidence, the Board then found that even on the applicant’s evidence, his injuries were not serious and that his injuries healed after he took some painkillers and ointment: [38] of the Board’s Decision.  The Board also noted that from the evidence, the creditor only wanted repayment and there was no incentive to kill the applicant or search for him throughout the whole country: [38] of the Board’s Decision.  More importantly, given the lapse of time and that the applicant had no news of the creditor since 2014, the Board found that there was no evidence to support his alleged fear of harm from his creditor.  In our view, the Board had carefully considered all the evidence and it was open for the Board to reach the above factual findings and assess the applicant’s non-refoulement claim on the applicable grounds.  Accordingly, the applicant’s contentions have no basis.  Ground 1 must fail.   

20.  As to Ground 2, the applicant submitted that the Board “opined that the applicant did not know much about the background of his creditors and whether they were related to public officials in Vietnam.  The adjudicator then came to the conclusion that the acts of the creditors had nothing to do with the state” and that high standards of fairness required the Board to adopt an active role and to draw attention to matters which required clarification by questioning the applicant in person.  The applicant then asserted that the high standards of fairness would require the applicant to be given an opportunity to be heard orally or further in writing before a decision was made. 

21.  Clearly, this ground is wholly misplaced and without basis.    As a start, the Board did not make those alleged observations as contended by the applicant.  Rather, the Board found on the evidence that the applicant reported the matter to the local police and the police did not reject his report or refuse to provide protection to the applicant: [42] and [50] of the Board’s Decision.  The Board also found that there was no evidence showing that the police had any relation with the applicant’s creditor: [42] of the Board’s Decision.  Upon further considering the COI, the Board then found that state protection would be available to the applicant upon his return: [43] to [44] of the Board’s Decision.  As mentioned above, the applicant also attended an oral hearing before the Board on 6 September 2018 and had opportunities to present his case and evidence before the Board.  For the above reasons, Ground 2 also fails. 

22.  As to Ground 3, the applicant complained that the Board “relied on an e-newspaper to the effect that the bribery issue as recognised in the preceding was prominently tackled by the State” and that the Board “should have critically and independently evaluated both the credibility and veracity of the COI materials” but had failed to exercise such an assessment.  The applicant then contended that paper disposal was a wholly unsatisfactory basis for the Board’s Decision.

23.  It is clear that those submissions are factually wrong and misplaced.  As a start, the Board had considered various COI materials (including news and country report) before noting that the Vietnamese police had been tackling the problem of using illegal means for debt collection and providing state protection to the citizens: see [43] to [44] of the Board’s Decision.  It is a bare assertion made by the applicant without any basis that the Board had not independently evaluated the COI.  As mentioned above, the Board had conducted an oral hearing before reaching its determination.  As such, Ground 3 must also fail.

24.  Regarding Ground 4, the applicant complained that the Board’s decision was irrational as “on any objective reading, no reasonable decision-maker could have come to the same conclusion as regard the level of severity suffered by the applicant while acknowledging that the applicant had indeed been pummelled, bludgeoned and threatened with a death threat by his creditors and conceded that it was a horrid and terrible experience”.  This point is bound to fail by reason of our earlier observations, in particular, those under Ground 1.

25.  As to Ground 5, the applicant complained that the Board failed to take into account any undue hardships faced by the applicant if he was to internally relocate within Vietnam.  This by itself does not show that there was any error of law or procedural irregularity in the Board ruling that the applicant is an able-bodied adult who can safely reside elsewhere in Vietnam without undue hardship after considering all the evidence and the COI.  As mentioned above, it is trite that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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.  Accordingly, this ground also fails. 

26.  For the above reasons, we see no error in the Leave Decision.  The applicant’s appeal has no merit and we dismiss the appeal.