RE NGUYEN VAN GIAP

CACV 44/2022

[2023] HKCA 60

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 44 OF 2022

(ON APPEAL FROM HCAL NO 1532 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 6 January 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 20 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 31 May 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Vietnamese national.  He last arrived in Hong Kong when he apparently entered Hong Kong without permission in August 2014.  He was arrested by the police on 12 April 2015 on suspicion of entering Hong Kong without permission.  The applicant raised his non-refoulement claim on 6 May 2015.

3.  The applicant’s claim was based on the fear that, if he returned to Vietnam, he would be harmed or even killed by a loan shark for failure to repay a loan.  The factual background was set out at paragraphs 5 to 21 of the Board’s decision.

4.  By notice of decision dated 31 May 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  Those applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 3 January 2019, during which the applicant gave oral testimony and answered questions from the Board.  During the hearing, the Board drew the applicant’s attention to a number of material inconsistencies between his testimony at the hearing and the evidence he gave to the Director, to which the applicant responded that he could not completely remember and that his memory was poor. Those inconsistencies concerned the timing of the loan, the amount of the principal and interest owed, and where the alleged assault on the applicant by the loan shark and his associates took place.  The Board found it difficult to believe that the applicant could have forgotten or mixed up such details.  As a result the Board did not accept that the applicant had taken out a loan or had been pursued and assaulted by the loan shark.  In any event, the Board considered that even on the applicant’s narrative, he had not suffered any serious harm.  Accordingly, the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that suitable state protection would be available and that internal relocation was viable.  Therefore, on 20 May 2019, the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

6.  On 4 June 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation the applicant briefly reiterated the factual basis for his claim, but did not set out any specific grounds for judicial review.

7.  Before his application was heard, the applicant filed an affirmation on 8 January 2020 in which he stated that “I want to retract my appeal”, as a result of which the Judge made an order dated 10 March 2020 for the application for leave to apply for judicial review be withdrawn.

8.  On 22 and 23 March 2021 the applicant filed an affirmation and a summons stating again: “I want to retract my appeal”.

9.  However, the applicant subsequently on 20 October 2021 filed a summons and an affirmation in which he sought to reopen his application for leave to apply for judicial review.  He stated: “I cannot return to Vietnam now, because my life is in danger, I am being pursued, threatened by my creditor.  If I go back Vietnam I will be torture or killed by the creditor.” [sic]

10.  Following a hearing on 30 November 2021 at which the applicant appeared in person before the Judge, on 6 January 2022 the Judge permitted the application for leave to apply for judicial review to be reinstated, but refused to grant leave to apply for judicial review, for reasons set out at [11] – [17] of the Form CALL-1 as follows:

“ 11. Before his application could be dealt with by the Court, the Applicant on 6 January 2020 filed an affirmation requesting to retract his application, which was subsequently treated by the Court as withdrawn without determination.

12. However, on 20 October 2021 the Applicant issued a summons requesting to re-open his application, and at the hearing of his summons he explained that in 2020 he applied to withdraw his application because he was told by his father that he would sell his property to help him to repay his debts to his creditor, and hence he thought it would be safe for him to return to Vietnam, but as he was unable to get on any flight due to the Covid-19 pandemic, and that recently he heard that his father had spent all the money without repaying his debts and that his creditor is still looking for him everywhere, he therefore decided that he cannot return to Vietnam and would like to re-open his leave application.

13. The Applicant did not produce any evidence to corroborate his assertions, but as I was unable to say with any certainty that what he had asserted could not have happened, and as the merits of his application had never been formally determined, I therefore gave him the benefit of the doubt and reinstated his leave application for determination, but as noted above, the Applicant did not put forth any proper ground for his intended challenge, nor was he able to do so at the hearing of his summons. As such and in the absence of any error of law or irrationality or procedural unfairness in his process for the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

14.  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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29 – 49 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  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 him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.”

Appeal to this Court

11.  On 20 January 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that the gravity of his circumstances had not been weighed or realized by the Board and the Director in considering his claim, and that he should be given an opportunity to plead his case properly.  No further details or particulars of these “grounds” were set out.

12.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

13.  The applicant lodged his written submissions for the appeal on 26 January 2022 in which he briefly referred to the factual background as well as the procedural history of his claim.  In the remainder of his submissions, he set out certain general legal principles and quoted passages from case authorities (without however explaining how they applied in his case), and asserted that the Board had acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

14.  The applicant further submitted that if he were to return to Vietnam, his life would be seriously threatened and he would probably end up dead, because creditors and gangsters in Vietnam are different from those in Hong Kong; most of them are cruel and violent, disregard the law and are willing to kill people.  Because he had not yet agreed on a repayment plan with his creditor, the applicant requested that his deportation be postponed, otherwise he would be killed if refouled.  Finally, the applicant submitted that the Director did not consider his human rights under the Basic Law and under the International Covenant on Civil and Political Rights, as well as other international human rights laws.

Discussion

15.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 

16.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due in part to the material inconsistencies in his evidence, but also due to the Board’s finding that even on the applicant’s narrative, he had not suffered any serious harm.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also found that suitable state protection would be available and that internal relocation was viable.  These findings are within the province of the Board.  The court will not interfere with such assessments unless they are vitiated on public law grounds.  There do not appear to us to be any such grounds in this case.

18.  The applicant has not identified any specific errors or concerns as regards the Board’s assessment of credibility.  There seem to be no valid public law grounds for reversing or interfering with the Board’s assessment.  In any event, the availability of state protection and viability of internal relocation are fatal to the claim.

19.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

20.  For these reasons, this appeal is dismissed.