RE NGUYEN THI HIEN

CACV 139 /2024, [2025] HKCA 61

On appeal from [2024] HKCFI 951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 139 OF 2024

(ON APPEAL FROM HCAL NO. 1385 OF 2022)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 2 April 2024[1] dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  and rejecting her non-refoulement protection claim. 

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers. 

3.  Despite directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support her appeal.  

The applicant’s claim

4.  The applicant is a Vietnamese national aged 43.  She entered Hong Kong illegally and was arrested on 30 July 2021.  She subsequently raised a non-refoulement claim based on fear of being harmed or killed by a moneylender due to her inability to repay her debt.  Her claim was succinctly set out by the Judge in [4] to [11] of the Form CALL-1.  It is not necessary to repeat it.  

The decisions of the Director and the Board

5.  By a Notice of Decision dated 19 November 2021, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 11 August 2022.  By a decision given on 23 November 2022, the Board dismissed the appeal.  In gist, the Board found the applicant’s evidence incredible and her claims inherently improbable and rejected them in their entirety.  The Board further found that even on her own case, the injuries she suffered was of low intensity and any risk of harm she might face in future was low and did not attain the required threshold to qualify for protection.  The Board also had regard to the available country of origin information and found that state protection and internal relocation options were reasonably available, which would reduce or remove any risk of harm that the applicant might face.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 1 December 2022 to seek leave to apply for judicial review against the decision of the Board.  The Judge heard the leave application at an oral hearing held on 23 February 2024.  By a Form CALL-1 dated 2 April 2024, he dismissed the application holding that the intended judicial review had no prospect of success.  His analysis and reasons were set out in details in [18] to [23] as follows: 

“18. The Applicant’s first ground of review that she will be killed by the moneylender is the basis of her claim for non-refoulement protection. Whether her risk and harm is proven is a question of fact for the Board and could not be a proper ground for review, though whether that finding was made as a result of error of law, procedural unfairness or irrationality could be. This ground is, in effect, a direct challenge of the Board’s finding of fact that the Applicant’s life will not be at any proscribed risk of harm on her return to Vietnam, which is not permissible. On the Board’s primary finding, the Applicant was incredible and had failed to prove the factual basis on which her claim for protection was founded. Hence, she had failed to prove the existence of the debt, her obligation to repay and risk of harm from the moneylender. This is a finding of fact which the Court in a judicial review will not interfere.

19. On the Board’s alternative finding, assuming that she was indeed unable to repay the debt she owed to the moneylender and was threatened with death, the Applicant was not entitled as a matter of law to protection under any of the four applicable grounds under the USM for reasons as explained in paragraph 14 above. In other words, even if the risk is real, it is not a proscribed risk in respect of which the Applicant is entitled to protection by the international community. This is a mixed finding of fact and of the law. Insofar as it involves finding of fact, the finding is exclusively within the province of the Board, which the Court on a judicial review will not interfere. Insofar as it is finding of the law and application of the law to the fact found, it is absolutely correct. There is no substance in this ground of application.

20. Under her second ground, the Applicant made some general allegations of procedural unfairness. Initially, she was adamant that the grounds were prepared by her. But when she was asked to explain those grounds, she was unable to and said that they were prepared by someone in English on the basis of what she said in Vietnamese. However, she was unable to provide particulars when the Court attempted to explore the particulars with her. She even admitted that she did not understand what “state acquiescence” meant, suggesting that she was not the author of that ground. She was unable to identify the COI referred to in her grounds. She could not recall what questions were asked by the Board which she was not in any position to answer. She explained that it was too long ago that she could not remember.

21. The Applicant could not even make out what this ground is. On the Board’s finding, not only was there was no evidence of state acquiescence, the Board made an express finding that the moneylender was not acting with state authority or state acquiescence. That is a finding of fact. The Board referred to COI, some of which support the Applicant’s aversions, some supported a more positive view that the Vietnamese government is combating corruption and illegal debt collection activities showing that state protection is available. The Board adopted a balance approach. It was open to the Board to make the finding as it did. It also found internal relocation a viable option for the Applicant. All these are finding of fact which the Court may not interfere. It is impossible to follow up on the Applicant’s complaint about being asked questions which she was not in a position to answer for want of particulars. Even if the Applicant had been asked such questions, it is impossible to assess the effect it would have on the Board’s decision due to lack of particulars. There is no merit in this ground.

22. The best the Court could do is to rigorously scrutinise the Decision for errors of law, procedural unfairness and irrationality. Having so examined the papers and the evidence, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

23.  Putting aside the Board’s primary finding that the Applicant had failed to prove the factual case on which her claim for protection is founded, the Board also assessed her claim on the basis of the case as she asserted. It was on the basis of her evidence, the Board made the alternative finding that even on that basis the Applicant is not as a matter of law entitled to protection under any of the applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding of the law and application of the law to the facts found, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings whether on the primary or alternative basis of its Decision. 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.”

The appeal

8.  By a notice of appeal filed on 10 April 2024, the applicant sought to appeal the Judge’s decision to this court.  The grounds of appeal stated that (1)  the applicant would be in danger or might die if she returned to Vietnam because the gangsters there were cruel and violent, had no regard for the law and would readily kill people; (2)  internal relocation was not a viable option; and (3)  the Director did not consider the applicant’s human rights under the Basic Law and various laws and international covenants.

9.  The applicant also filed an affirmation in which she asserted that there is a good ground of appeal which has not been considered in her leave application.  We will not consider this affirmation as no leave has been sought or given to the applicant to adduce new evidence on appeal.  In any event, what was stated in the affirmation is a mere assertion without any supporting details or elaborations.  

Our reasons for decision

10.  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.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. 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), who are the 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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

11.  We are of the view that the matters set out in the notice of appeal do not amount to any viable ground of appeal.  Importantly, the applicant has not pointed to any error in the Judge’s decision.  Further, the Board had rejected the applicant’s evidence and case in their entirety.  Both before the Judge and in this appeal, the applicant has not identified any error in the Board’s assessment of the evidence and finding of facts and the application of the law, or any irrationality or procedural irregularity in the Board’s decision.  We agree with the Judge that no error can be detected on the Board’s decision both in respect of the primary basis and the alternative basis of its decision.  In light of the Board’s findings, the applicant’s assertions that she will be in danger if she returns to Vietnam has no supporting foundation.  The Judge’s decision to dismiss the application for leave to apply for judicial review is plainly correct.

12.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.