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CACV 78/2023, [2023] HKCA 1078
On Appeal From [2023] HKCFI 468
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 78 OF 2023
(ON APPEAL FROM HCAL NO 716 OF 2022)
________________________
| RE: |
LE THI THANH |
Applicant |
________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Judgment: |
20 September 2023 |
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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 an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 10 March 2023, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”) ([2023] HKCFI 468).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 29 June 2022 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 January 2022 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
3. On 15 March 2023, the applicant indicated her consent in writing for this appeal to be disposed of on paper. Accordingly, we proceeded to consider this appeal on paper based on the available materials.
Background
4. The applicant is a national of Vietnam. She entered Hong Kong illegally on 17 June 2017 and was arrested by the police on 27 June 2017 for the offences of immoral soliciting and illegally remaining in Hong Kong for which she was subsequently convicted and sentenced to prison for 15 months. On 16 September 2021, she raised a non-refoulement claim on the basis that if she returned to Vietnam she would be harmed or killed by her creditor over her unpaid debts. Factual details of the applicant’s claim were summarised by the Deputy Judge at [1] - [5] of the Leave Decision.
5. By their decisions respectively dated 14 January 2022 and 29 June 2022, the Director and the Board dismissed her non-refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate her non-refoulement claim on all applicable grounds. In particular, in dismissing her appeal against the Director’s Decision, the Board found that the applicant was not credible and her account of events in support of her claim was rejected as untruthful. Further, the Board considered that the disputes were private in nature and that state protection and internal relocation would be available to her. The Board found on the evidence that the applicant failed to discharge her burden of proving the factual basis to support her non-refoulement claim and dismissed her appeal.
The Leave Decision
6. On 3 August 2022, the applicant filed her Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision. No ground of review was given by the applicant in support of her application. As the applicant did not request for any oral hearing, her application was considered on paper.
7. By the Leave Decision, the Deputy Judge dismissed her application for leave to apply for judicial review. His reasons were set out in detail at [10] - [14] of the Leave Decision:
“10. On 3 August 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or supporting affirmation, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
11. 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.
12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
13. 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.
14. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.”
The Appeal
8. On 15 March 2023, the applicant filed a Notice of Appeal and a supporting affirmation to appeal against the Leave Decision. In her Notice of Appeal, she stated that the gangsters and creditors disregarded the law and that she would be tortured, beaten or even killed. She also claimed that it would be infeasible for her to internally relocate as she was not an active person and might be disadvantaged in the labour market. She further claimed that it would be very dangerous for her to escape to another place in Vietnam.
9. In her supporting affirmation, she alleged that there was “a good ground of appeal that was not necessarily considered at stage of applying for leave for Judicial Review” and that the Director and the Board “did not see the grounds to reserve their decisions”. However, she failed to specify what those grounds as claimed were.
10. Contrary to the directions of the Registrar of Civil Appeals dated 15 March 2023, the applicant failed to lodge any written submissions.
Discussion
11. 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].
12. 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.
13. In our view, the applicant’s allegations have no substance. It is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision. Her complaints are also all general and vague without specific particulars or evidence in support. They therefore do not constitute proper grounds of appeal. See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, she did not identify any specific error in the Decision. This appeal must fail on this alone.
14. Further, it is trite that assessment of evidence, Country of Origin materials 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].
15. For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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