TRAN HUU THANG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 352 /2024, [2026] HKCA 383

On appeal from [2024] HKCFI 2155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 352 OF 2024

(ON APPEAL FROM HCAL NO 306 OF 2024)

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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):

Background

1.  On 27 August 2024, Deputy High Court Judge To refused to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim^[1].  The applicant filed a Notice of Appeal against the decision on 3 September 2024.

2.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 15 July 2020 and was arrested by the police on 9 September 2020.  He lodged a non-refoulement claim on 29 September 2020. His claim was made on the basis that, if refouled, he would be harmed or killed by the loan shark and his men as the applicant failed to repay his debt.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 29 July 2021, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  The Director found that the alleged ill-treatment has not attained the requisite minimum level of intensity and the behaviour of the creditor and his men showed that they did not have a real intention to seriously harm or kill the applicant.  The Director also found that the applicant’s problem is a private monetary dispute and there is no evidence to show that the Vietnamese government or any government official is involved.  In addition, the Director further held that the availability of state protection and internal relocation options in Vietnam would further lower or negate any perceived risk.  

5.  The applicant filed an appeal against the Director’s decision with the Board.  He was absent from the hearing before the Board scheduled on 17 October 2023.  The Board found that the applicant failed to establish that he would be subjected to persecution for a reason under the Refugee Convention (“RC”) as avoidance on loan repayment is not one of the RC reasons and reasonable state protection is available in Vietnam.  The Board did not accept that the alleged ill-treatment, whether physical or mental, has attained the requisite minimum level of severity.  The Board also found no evidence to show that the creditor or his followers had any connection with the Vietnamese police or government nor that the applicant was targeted by or was of interest to the Vietnamese government.  The Board decided that the applicant failed to establish his claim on any of the applicable grounds and dismissed the appeal on 3 November 2023.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 9 February 2024 to seek leave to apply for judicial review against the decision of the Board.  He was late by 6 days in filing the application.  He stated the following grounds of his intended challenge in his supporting affirmation:

(1)     the decisions of the Director and the Board are unreasonable and unfair.  The Board failed to give him sufficient time and chance to arrange the relevant evidence;

(2)     the Director failed to appreciate or give proper importance or weight to state acquiescence;

(3)     the Director failed to consider or give enough weight to the relevant country of origin information which supports the applicant’s assertions that the Vietnamese police would not be able to protect him;

(4)     the Director’s attitude was unfair and the Director failed to attain high standard of fairness.

The judge’s decision

7.  The applicant was absent from the hearing scheduled before DHCJ To on 9 August 2024 so the judge dealt with the application on paper. 

8.  The judge found that the applicant had ample time to prepare for his appeal to the Board and there was no deprivation of his chance of making worthwhile or effective representation.  The judge further found there is a total absence of evidence of influence by the state and no basis for complaint in respect of the Board’s consideration of the country of origin information regarding state protection.  Furthermore, the judge found there are no particulars concerning the complaint about unfair attitude and no error of law, procedural unfairness or irrationality at any stage of the non-refoulement proceedings as well as the Board’s decision.   The judge was not satisfied that the applicant has any realistic prospect of success in the proposed judicial review so he refused to grant extension of time and dismissed the leave application on 27 August 2024.

Grounds of appeal

9.  The applicant stated the following grounds in his Notice of Appeal and affirmation:

(1)     If he returns to Vietnam, his life would be seriously threatened or he would probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill people;

(2)     The suggestion of the Director on internal relocation is completely unfeasible as the applicant would face many difficulties and obstacles;

(3)     With the nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)     The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(5)     The Director and the Board did not see the grounds to reserve their decisions.

10.  He submitted a written consent for the appeal to be disposed of on paper without an oral hearing.  Despite the directions given by the Registrar of Civil Appeals requiring the applicant to lodge written submissions on or before 17 September 2024, he did not lodge any written submissions.

Legal principles

11.  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.

12.  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 scrutinising 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.

13.  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

14.  The judge has duly explained the reasons for rejecting the application in his decision.  The applicant has not identified any error in the judge’s decision and did not have any valid ground to challenge it.

15.  Therefore, the appeal is devoid of merit and is dismissed accordingly.

[1] [2024] HKCFI 2155

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to 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).

[5] 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.