TRAN SAU LENH v. TORTURE CLAIMS APPEAL BOARD

CACV 468 /2020

[2021] HKCA 296

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 468 OF 2020

(ON APPEAL FROM HCAL NO 743 OF 2018)

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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.  The applicant lodged a Notice of Appeal on 14 September 2020 against the decision of Deputy High Court Judge Bruno Chan dated 2 September 2020[1]. By that decision, the judge refused to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim.

2.  The applicant is a national of Vietnam.  She is 62 years old.  She last entered Hong Kong illegally on 10 November 2015.  She surrendered to the Immigration Department and raised a non-refoulement claim on the same day.  Her claim was made on the basis that if she returns to Vietnam she will be harmed or killed by her creditor for failing to repay her loan. 

3.  The applicant consented to the disposal of this appeal on paper by the Court of Appeal.  She lodged her written submissions on 2 December 2020 pursuant to the directions of the Registrar of Civil Appeals. 

The Director’s decisions

4.  By a Notice of Decision dated 5 August 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk[2], BOR 3 risk[3] and persecution risk[4]. 

5.  The Director assessed that the risk of harm the applicant would face if she returns to Vietnam is low.  The Director considered that the applicant’s problem with the creditor is a private dispute without any official involvement and she had not suffered any serious physical or mental harm.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

6.  By a Notice of Further Decision dated 11 October 2017, the Director rejected the applicant’s claim on all applicable grounds including BOR 2 risk[5] in the absence of response from her to the invitation to submit additional facts which may be relevant to her non-refoulement claim.

The Board’s decision

7.  The applicant appealed to the Board against the Director’s decisions.  The Board conducted an oral hearing on 6 February 2018.  The Board found that the applicant had fabricated her claim as her assertions are inherently improbable and self-contradictory.  The Board further held that even if her allegations were true, she still fails to establish her claims under the applicable grounds.  The Board also assessed there is reasonable state protection in Vietnam and internal relocation is reasonable and not unduly harsh for the applicant.  Thus, the Board decided that the applicant is not entitled to non-refoulement protection and rejected the appeal on 22 March 2018. 

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 27 April 2018 to seek leave to apply for judicial review against the decision of the Board. She only stated in her supporting affirmation that she cannot go back to Vietnam as her creditor will kill her and she wishes to stay here for more time pending the assistance of her family to repay the debt.  She did not put forward any specific grounds for her intended challenge against the Board’s decision.

The judge’s decision

9.  The judge found that the applicant does not have any reasonably arguable basis to challenge the finding of the Board.  The judge was not satisfied that the applicant has any prospect of success in her intended judicial review as there is no error of law or procedural unfairness in the decisions of the Director and the Board.  Therefore, the leave application was dismissed on 2 September 2020.

Grounds of appeal

10.  The applicant filed a notice of appeal on 14 September 2020 in which she stated the following as her grounds of appeal:

(1)     the gravity of her circumstances have not been weighed or realized by the putative respondents while considering her non-refoulement claim; and

(2)     she should be given an opportunity to plead her case properly.

11.  In her written submissions, she put forward further contentions as follows:

(1)     high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)     the adjudicator acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility;

(3)     the Board only drew negative inferences in her case from information which was not a balanced view; and

(4)     the Director and the judge failed to acknowledge the presence of state acquiescence or to give sufficient weight to the extended concept of state acquiescence.

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.  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.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials and 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.

14.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

15.  The applicant’s grounds were not raised in her previous leave application.  The Court of Appeal would not entertain these new grounds as an appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below[6].

16.  In any event, her grounds are just bare assertions without particulars and evidence in support.  She has failed to provide evidence to refute the findings of the Board that she had fabricated her stories regarding her loans and the alleged threats from her creditor. 

17.  For the above reasons, there is no merit in the appeal and no reasonable prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.