NGUYEN NGOC TUAN v. DIRECTOR OF IMMIGRATION

CACV 66/2023, [2023] HKCA 710

On Appeal From [2023] HKCFI 464

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 66 OF 2023

(ON APPEAL FROM HCAL NO 1175 OF 2022)

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JUDGMENT

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

1.  On 1 March 2023, the Applicant filed a notice of appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 February 2023 (“the Order”)refusing to grant leave to the Applicant to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 7 October 2022 refusing to allow him to make a subsequent claim for non-refoulement protection after his previous claim had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”).

BACKGROUND

2.  The Applicant is a national of Vietnam.  He entered Hong Kong illegally on 23 November 2015, and raised a non-refoulement claim on the basis that if he returned to Vietnam, he would be harmed or killed by his creditor over his outstanding debts.  Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 12 May 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision to the Board.  On 23 November 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision. The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“The Applicant’s appeal against the Director’s decision was also dismissed by the Board on 23 November 2018 after hearing him in evidence and submissions and upon finding it was a private monetary dispute without any official involvement that any risk that might arise therefrom would be negated by state/police protection or avoided by reasonable internal relocation available to the Applicant upon his return to Vietnam that his claim for non-refoulement protection failed on all the applicable grounds, and that the Board also confirmed the Director’s decision.”

5.  The Applicant did not bring any legal challenge of the Board’s decision by judicial review.  On 18 December 2018, he was repatriated to Vietnam.

6.  More than 3 years later, on 1 July 2022, the Applicant again entered Hong Kong illegally.  He was arrested by the police on 24 July 2022, and was referred to the Immigration Department for investigation.

7.  On 1 August 2022, the Applicant requested in writing to the Immigration Department to make a subsequent claim for non-refoulement protection on the basis that upon his return to his home country, he discovered that his creditor was still looking for him everywhere and he still feared being harmed or killed if he was refouled to Vietnam.

8.  On 5 August 2022, the Director required the Applicant to provide further information and evidence in writing in support of his request to make a subsequent claim within 14 days.  The Applicant failed to provide any further information despite being given further time to do so.

9.  By a Notice of Decision dated 7 October 2022 (“the Director’s Decision”), the Director refused to allow the Applicant to make a subsequent claim.  The Director considered that the basis of the Applicant’s intended subsequent claim was essentially the same as that of his previous claim, and he had failed to provide any evidence in writing to satisfy an immigration officer that there had been a significant change of circumstances since his previous claim was determined, or those changes when taken together with the materials previously submitted in support of his previous claim would give his subsequent claim any realistic prospect of success.

THE JUDGE’S DECISION

10.  On 31 October 2022, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision.  Although the Applicant referred to both the “Torture Claims Appeal Board” and the “Immigration Department” as proposed respondents, the decision in respect of which relief was sought was identified as being dated “7/10/2022” (ie the Director’s Decision).  No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, the Applicant stated that he did not agree with the decision of the Torture Claims Appeal Board, and he could not go back to his home country because his life would be in danger there.

11.  On 17 February 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] On 31 October 2022 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation filed on the same day he merely stated that he does not agree with the decision as his life is still in danger in his home country that he cannot return but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application.

[16] As such and in the absence of any or sufficient evidence in writing from the Applicant to an immigration officer in support of his such request, or of any error of law or irrationality or procedural unfairness in his process before the immigration officer or in the Director’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

[17] In the premises, and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request for subsequent claim, and given the correct findings by both the Director and the Board in his previous claim upon which his proposed subsequent claim is factually based that both state protection and internal relocation would be available to the Applicant upon his return to Vietnam to negate the same risk that might arise from his subsequent claim, I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse his leave application.”

THIS APPEAL

12.  In his Notice of Appeal filed on 1 March 2023, the Applicant stated that if he returned to Vietnam, his life would be seriously threatened, and he might even die.  He disagreed with the Director’s view that he could move to live in another location in Vietnam.

13.  The Applicant has not lodged any written submissions in accordance with the directions given by the Registrar of Civil Appeals on 1 March 2023.

DISCUSSION

14.  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 non-refoulement cases, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

15.  The Applicant’s grounds of appeal do not relate to the Director’s reasons for refusing to allow him to make a subsequent claim, or the Judge’s reasons for refusing to grant him leave to apply for judicial review.  He has failed to identify or show any error in the Judge’s decision of 17 February 2023, and has failed to raise any viable ground of appeal against the Order.

16.  The Applicant’s appeal has no merits, and is dismissed.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

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

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] 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.