RE GUYEN THANH HAI

CACV 13/2022

[2022] HKCA 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 13 OF 2022

(ON APPEAL FROM HCAL 501 OF 2019)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 31 December 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2021] HKCFI 3885).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 30 April 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 19 January 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The appeal was listed to be heard on 26 April 2022. The applicant was directed to lodge two sets of skeleton argument on or before 29 March 2022 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper. The direction and the warning were communicated to the applicant by the Notice of Hearing dated 4 March 2022.

4.  On 30 March 2022, this Court further directed that unless the applicant lodged with the Court two sets of skeleton argument on or before 14 April 2022, in default of which, the appeal hearing fixed on 26 April 2022 at 10:30am will be vacated with the appeal being determined on paper without further directions. The same was also communicated to the applicant by letter on the same day. However, the applicant did not lodge any skeleton argument in support of his appeal.

5.  The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1. Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process. Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants. Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal. In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not permitted, and this court has taken a firm stance on the requirement to lodge skeleton argument. Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

6.  As the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated. We have proceeded to consider this appeal on paper based on the available materials.

Background

7.  The applicant is a national of Vietnam. He claimed to have entered Hong Kong illegally through Shenzhen on 26 September 2015.[1] On 29 September 2015, he surrendered to the Immigration Department and made a non-refoulement claim on the basis that he would be harmed or killed by his creditor if refouled to Vietnam as he was unable to repay his debts. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] ‑ [5] of the Leave Decision.

8.  By a Notice of Decision dated 19 January 2017, the Director rejected the applicant’s non-refoulement claim. His decision covered all applicable grounds including torture risk[2], namely BOR2 risk[3], BOR3 risk[4], and persecution risk[5]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

9.  On 1 February 2017, the applicant appealed against the Director’s Decision to the Board. The applicant attended the hearing before the Board on 21 February 2019 and gave evidence. The Board dismissed his appeal on 30 April 2019. Having assessed the evidence, the Board considered that his evidence was unreliable and that his alleged story was heavily tainted by multiple vagueness in detail. The Board concluded that the applicant failed to substantiate his claim on the applicable grounds and dismissed his appeal.

The Leave Decision

10.  On 21 February 2019, the applicant applied for leave to apply for judicial review against the Board’s Decision.[6]  In his Form 86 and supporting affirmation, he only stated that he could not repay his debt and his life would be in danger if refouled to Vietnam.

11.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review. His reasons were set out at [12] ‑ [17] of the Leave Decision:

“12. The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13 (1).… …Assessment of evidence and COI 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.’

15. His ground in support of this application does not assist his application.

16. Although the Board had made some hypothetical questions about the applicant’s intention of coming to Hong Kong in its assessment of his credibility, I have considered the facts of the applicant’s case and find that those minor issues will not give him realistic prospect of success in his intended judicial review. He cannot overcome the issues of state protection and internal relocation, which reduce his risks substantially and therefore there is no real risk that he may be harmed or killed if he returns to Vietnam.

CONCLUSION

17. I therefore refuse to grant leave for the applicant to apply for his intended judicial review. Accordingly, I dismiss his application.”

The Appeal

12.  On 6 January 2022, the applicant filed a Notice of Appeal and supporting affirmation in support of his appeal against the Leave Decision. In his Notice of Appeal, he stated:

“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by Putative Respondent and Putative Interested Party while considering my non-refoulement claim. I should be given an opportunity to plead my case.” (sic)

13.  In his supporting affirmation, he only claimed that there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”. However, he did not state what his intended “good ground of appeal” was.

Discussion

14.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  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. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  Nowhere in his Notice of Appeal or supporting affirmation did the applicant identify any error made by the Deputy Judge in the Leave Decision. As such, there is simply no viable ground of appeal and the appeal must fail on this basis alone.

17.  In any event, there is no substance in the applicant’s complaint that the Director and the Board failed to weigh the “gravity of his case” or give him the opportunity to plead his case. As correctly noted by the Deputy Judge, it is well-established that the assessment of evidence, Country of Origin Information (“COI”) and risk of harm, state protection and viability of internal relocation were primarily within the province of the Board (and the Director) as 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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11]. The Board and the Director had considered in detail the materials and representations provided by the applicant as well as the COI before reaching their respective decisions. The applicant was given ample opportunities to present his case before Board and the Director. He also attended and answered questions from the Board during the oral hearing before the Board.[7] As such, his complaints are wholly without merit.

18.  For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.