VU THI HA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 236/2024, [2024] HKCA 968

On Appeal From [2024] HKCFI 1381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2024

(ON APPEAL FROM HCAL NO 1641 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 4 June 2024 (“the Order”) refusing to grant her leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 27 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 14 March 2018.

BACKGROUND

2.  The Applicant is a national of Vietnam. She claimed that she entered Hong Kong illegally on 27 August 2015. She was arrested on 20 September 2015. On 25 September 2015, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by her creditor Tran Manh Chi for being unable to repay a loan. Details of the Applicant’s claim have been summarised by the Judge at §§4-9 of the CALL-1 Form.

3.  By a Notice of Decision dated 14 March 2018 (“the Director’s Decision), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 27 May 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§14-15 of the CALL-1 Form:

“[14] Having considered the applicant’s evidence, the Board was of the view that the applicant did borrow money from the creditor and that she remained indebted to him. The Board also accepted that the applicant was assaulted twice due to her indebtedness [36]. However, the Board considered that the applicant’s claimed risk was localised and that she could simply relocate to avoid the creditor [37]-[39].

[15] Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [7]-[9], [40]-[44], BOR 2 and BOR 3 risk [10]-[14], [45]-[50] or Torture risk [15]-[18], [51]-[54].”

5.  On 17 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In her supporting affirmation of the same date, the Applicant repeated her claim that if she was refouled to Vietnam, she would face a genuine and substantial risk of being subjected to torture or even killed by her creditor and his men since she was insolvent.

THE JUDGE’S DECISION

6.  On 4 June 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[22] The Board found that the state was not involved in the monetary dispute between the applicant and her creditor [35]. The Board further found the internal relocation may alleviate her risk as in the Board’s Decision, the Board found:

‘38. Even if it is assumed that the Claimant might face a real risk of harm at the hands of Chi [the creditor], such risk remains local to the Claimant’s home area. The Claimant could, without undue hardship, avoid any risk of contact with Chi if she were to relocate to any large city in Vietnam, for example to Hanoi, which has a population in excess of 7.5 million people, or Ho Chi Ming City, population in excess of 8.4 million.

39. While the Claimant is no longer a younger person, she has been able to maintain herself since 2013, both in Vietnam and in China. She does not have responsibility for any other persons and could, without undue hardship, relocate to Hanoi, or Ho Chi Ming City where she should be able to find employment, given the strong economy and thriving tourist industry of Vietnam.’

[23] The applicant has raised no valid reason to challenge the Board’s Decision. The Court should not interfere with the Board’s finding of the facts.

[24] The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In her Notice of Appeal dated 11 June 2024, the Applicant repeats her claim that her life will be seriously threatened, and she will probably die, if she returns to Vietnam, because most creditors and gangsters in Vietnam are cruel and violent, and they disregard the law and are willing to kill people to satisfy their anger and ferocity. She disagrees with the Director’s assessment that she can move to another location in Vietnam to avoid her creditor for various reasons. She alleges that the Immigration Department failed to consider her human rights under various instruments including the Basic Law and the International Covenant on Civil and Political Rights.

8.  In her affirmation of the same date, the Applicant states that she understands that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, but she fails to identify what that ground may be.

9.  By a written confirmation dated 11 June 2024, the Applicant consented to her appeal being disposed of on paper by the Court without an oral hearing.

10.  The Applicant has failed to lodge any written submissions in support of her appeal contrary to the directions given by the Registrar of Civil Appeals on 11 June 2024.

DISCUSSION

11.  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 a non-refoulement case, 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)).

12.  Further, the assessment of evidence, country of origin information, 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. The Applicant has failed to show any such error of law or procedural unfairness or irrationality in the present case.

13.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

14.  The Applicant’s appeal against the Order has no merit and is dismissed.