TRAN VAN NAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 356/2023, [2024] HKCA 567

On Appeal From [2023] HKCFI 2633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 356 OF 2023

(ON APPEAL FROM HCAL NO 1228 OF 2019)

____________

____________

_________________

J U D G M E N T

_________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung (“Judge”) on 2 November 2023[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 29 April 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 7 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1974.  He entered Hong Kong illegally from Mainland China and was arrested by the police on 4 May 2015.  He submitted  a written signification indicating his intention to lodge a non-refoulement claim in Hong Kong on 8 May 2015.  The applicant’s claim was made on the basis that if he returned to Vietnam, his creditor would harm or kill him due to his inability to repay a loan.   The factual background of the applicant’s claim was set out at [12(1)] to [12(20)] of the Board’s decision.

3.  By notice of decision dated 7 April 2017, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 25 October 2018, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the applicant was legally represented by counsel. Although the Board accepted that the discrepancies between the applicant’s non-refoulement claim form and his oral evidence were not large, it did not accept the applicant’s evidence to be credible.  It found the discrepancies damaged the applicant’s credit, because the nature of his claim was rather simple but he orally submitted different versions of events and details.  The Board also considered that the applicant was reciting information rather than recollecting real events.  Therefore, the Board did not find that the applicant had procured a loan, had been pursued for repayment of the loan, or had been threatened for repayment.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Vietnam.  It found there was in fact no real risk of harm if the applicant returned to Vietnam even on the basis of the events alleged by the applicant, because the dispute with the creditor was of a private nature without involvement of the state, the risks did not reach the requisite level of harm, and both state protection and internal relocation would be available to the applicant according to the country of origin information.

6.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 29 April 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

7.  On 8 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision.

8.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 2 November 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review on the basis that the role of the Court in judicial review is supervisory and must not usurp the fact finding power vested in the Director and the Board.  The applicant had not demonstrated any error of law or procedural unfairness in the decisions of the Board or the Director.  The findings of the Board are not challengeable as Wednesbury unreasonable or irrational and the applicant failed to show that he has any realistic prospect of success in the proposed judicial review.

Appeal to this Court

9.  On 13 November 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would be beaten or even killed by gangsters if he returned, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation, and that the Director failed to consider his human rights.

10.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

11.  The applicant has not lodged any written submissions. 

Discussion

12.  In assessing the merits 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.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because it did not accept the applicant’s claim to be credible.  In any event, the Board found the applicant’s claim was a dispute of a private nature without state involvement, and state protection and internal relocation were viable options.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the ground advanced relating to human rights, it consists of mere general and bald assertions regarding the decision of the Director without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.