|
CACV 334/2023, [2024] HKCA 109
On Appeal From [2023] HKCFI 2610
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 334 OF 2023
(ON APPEAL FROM HCAL NO 1023 OF 2019)
________________________
|
BETWEEN
|
| |
NGUYEN THI HOA |
1st Applicant |
| |
DO TUAN ANH |
2nd Applicant |
| |
and |
|
| |
TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
| |
and |
|
| |
DIRECTOR OF IMMIGRATION |
Putative |
| |
|
Interested Party |
_____________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Judgment: |
31 January 2024 |
________________
J U D G M E N T
________________
Hon Chow JA (giving the Judgment of the Court):
1. This is the 2nd Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 10 October 2023 (“the Order”) refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 10 April 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 3 January 2017.
BACKGROUND
2. The Applicants are Vietnamese nationals. The 1st Applicant is the mother of the 2nd Applicant. The 2nd Applicant was born on 24 September 2002. At the time of the assessment of the 2nd Applicant’s non-refoulement claim by the Board, the Applicant was still a minor. However, by the time of the hearing of his application for leave to apply for judicial review, he had attained full age.
3. The Applicants entered Hong Kong on 15 August 2015 illegally, and surrendered themselves to the authorities on 17 August 2015. They raised their non-refoulement claims on the basis that if they were refouled to Vietnam, they would be harmed or killed by a moneylender (Thuan) with triad connections because the 1st Applicant was unable to repay a loan borrowed by the 1st Applicant’s husband and eldest son in Vietnam in the amount of 1,000 million VND, and would also face legal actions from the Vietnamese Bank for Agricultural and Rural Development in respect of another loan in the amount of 500 million VND. Details of the Applicants’ claims were summarised by the Judge at §§1-12 of the CALL-1 Form.
4. By a Notice of Decision dated 19 August 2016 (“the Director’s 1st Decision), the Director dismissed the Applicants’ non-refoulement claims on the following grounds: the risk of torture[1], BOR 3 risk[2], and persecution risk[3]. The Director’s reasons for the decision were:
“(1) the ill-treatment did not attain a minimum level of severity (Paragraph 12 of the Notice);
(2) Thuan had no real intention to seriously harm or kill the Applicants and ARD Bank had no intention to take legal action against the 1st Applicant in respect of the loan after actualising the collateral and hence the feared risk of ill-treatment is low (Paragraphs 13 and 38 of the Notice);
(3) the dispute between the Applicants and Thuan is a private dispute (Paragraphs 36 and 42 of the Notice);
(4) the ill-treatment was not inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity (Paragraph 42 of the Notice);
(5) the Vietnamese government does not know or have reasonable grounds to believe the Applicants’ claimed feared treatment by Thuan, otherwise it would exercise due diligence to prevent, investigate and punish Thuan (ie adequate state protection is available) (Paragraph 42 of the Notice); and
(6) in any event, internal relocation is feasible (Paragraph 29 of the Notice)” (see §13 of the CALL-1 Form).
5. The Applicants did not appeal the Directors’ 1st Decision. Hence, the Director’s 1st Decision became final and binding on them.
6. On 7 December 2016, the Director invited the Applicants to submit additional information, if any, on or before 21 December 2016, which they considered relevant to their non-refoulement claims on all applicable grounds, including specifically BOR 2 risk[4]. The Applicants did not respond to the Director’s invitation. On 3 January 2017, the Director issued a Notice of Further Decision (“the Director’s Further Decision”) rejecting their non-refoulement claims with reference to BOR 2 risk.
7. The Applicants appealed the Director’s Further Decision to the Board. On 10 April 2019, the Board dismissed the Applicants’ appeal, and confirmed the Director’s Further Decision (“the Board’s Decision”). The Board’s reasons for its decision were as follows:
“[10] In the present case, the right protected by BOR 2 has no relevance to the matters complained of by the Petitioners. Neither the evidence originally adduced, nor the new documents showed that they will be at risk of harm from capital punishment inflicted by the government of Vietnam; or face harm from the Vietnam government that would place their lives at risk. This conclusion is based on the following findings of material facts:-
(a) The Petitioner’s problem with their loan creditor was a private dispute between them with no Government involvement.
(b) There is no evidence to show that the government has acquiesced in any attempt by their loan creditor to kill the Petitioners.
(c) There was no evidence to show that the Vietnam Government was unwilling or unable to afford protection to the Petitioners.
[11] There is nothing in the evidence to show that the Petitioners will be at risk of BOR 2 harm if refouled.”
THE JUDGE’S DECISION
8. On 15 April 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In the 1st Applicant’s supporting affirmation of the same date, she merely repeated the factual basis of the Applicants’ non-refoulement claims.
9. The Judge held a hearing of the leave application on 31 August 2023 in view of the fact that the 2nd Applicant was a minor at the time that he made his claim for non-refoulement protection and he might have views of his own different from those of the 1st Applicant. The 2nd Applicant attended the hearing in person, and the Judge heard oral submissions from him. The 1st Applicant was absent from the hearing. On 10 October 2023, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:
“Grounds for judicial review
[19] The Applicants did not advance any grounds for judicial review in the Form 86. In the 1st Applicant’s affirmation filed in support of their leave application, she only reiterated the essence of their claim and emphasised their fear.
[20] After explaining the gist of their claim and the above legal principles to the 2nd Applicant, he confirmed that he was a child at the material time and did not remember what had happened. He had no other grounds of application and had no submissions to make.
Discussion and conclusion
[21] In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that they disagreed with the finding of the Board that it is safe for them to return to Vietnam. In effect, they are seeking to challenge the Director’s finding of fact in the Notice and Further Notice that they would not face any real harm or risk if returned to Vietnam. That is both irrelevant for the purpose of this leave application and not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
[22] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the BOR 2 Risk ground; correctly identified the issues and observed a very high standard of fairness.
[23] The subject matter of this leave application is the Board’s Decision dismissing the Applicants’ appeal against the Director’s Further Notice rejecting their claim for non-refoulement protection under BOR 2 Risk ground. The Board considered the Applicants’ appeal on the basis of the Director’s finding in the Notice which the Applicants never appealed, despite they had been advised in the Notice to do so and within 14 days if they were aggrieved by the decision. The finding of fact in the Notice is now final and binding on them. The Applicant could not have any valid complaint on the approach of the Board. It was on the basis of those finding of fact and the law that the Board found basically that BOR 2 Risk is not engaged.
[24] BOR 2 Risk ground protects a person from arbitrary deprivation of life by his own nation and restricts the circumstances under which a death sentence may be imposed by a nation on its subjects. It is not the Applicants’ case that a death sentence has been imposed on them. In Paragraph 10 of the Decision read in conjunction with the Director’s finding as summarised in Paragraph 13 above, the Board referred to and adopted the Director’s finding of fact that the dispute between the Applicants and Thuan was a private dispute between them with no involvement by the Vietnamese government. Not only that the feared threat or ill-treatment was neither executed by or with the consent or connivance of the Vietnamese government, the Director found that the Vietnamese Government did not know or have reasonable grounds to believe the Applicants were subjected to ill-treatment by Thuan; and had it known about that, it would have taken steps to protect them against the feared ill-treatment and risk. Thus, there is no evidence that the Applicants will be at risk of deprivation of the life by the Vietnamese government and that state protection is available. Hence, the Board upheld the decision of the Director in his Further Notice. These are findings of facts which are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”
THIS APPEAL
10. In his Notice of Appeal filed on 24 October 2023, the 2nd Applicant repeated his claim that his life would be seriously threatened, and he might even die, if he returned to Vietnam because most creditors and gangsters in Vietnam were cruel and violent. They disregarded the law and were willing to kill people to satisfy their anger and ferocity. The 2nd Applicant disagreed with the Director that he could relocate to live in another part of Vietnam away from his home for various reasons. He alleged that the Immigration Department did not consider his human rights under, inter alia, the Basic Law and the International Covenant on Civil and Political Rights. He also mentioned that the 1st Applicant had returned to Vietnam. Thus, the Notice of Appeal was filed by the 2nd Applicant only.
11. On 24 October 2023, the 2nd Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.
12. The 2nd Applicant has not filed any written submissions, contrary to the directions given by the Registrar of Civil Appeals dated 24 October 2024.
DISCUSSION
13. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
14. Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.
15. As earlier mentioned, the 2nd Applicant was still a minor at the time when his appeal was considered by the Board. We note that the Board did not consider the 2nd Applicant’s claim separately from that of his mother (the 1st Applicant).
16. The Court’s approach in considering a minor’s claim for non-refoulement protection is well-established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment.
17. The 2nd Applicant’s claim was premised fundamentally on the claim of the 1st Applicant. The Board rejected the Applicants’ non-refoulement claims because (i) the 1st Applicant’s problem with the creditor was a private dispute with no Government involvement; (ii) there was no evidence to show that the Vietnam Government had acquiesced in any attempt by the creditor to harm or kill the Applicants; and (iii) there was no evidence to show that the Vietnam Government was unwilling or unable to afford protection to the Applicants. We do not see any material that may give rise to a concern that there may be non‑refoulement grounds that relate specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.
18. The 2nd Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
19. The 2nd Applicant’s appeal against the Order has no merit and is dismissed.
(Thomas Au)
Justice of Appeal
|
(Anderson Chow)
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 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.
[3] 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.
[4] This refers to the risk of being arbitrarily deprived of her life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
|