NGUYEN TUAN VINH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 25/2024, [2024] HKCA 795

On Appeal From [2024] HKCFI 122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2024

(ON APPEAL FROM HCAL NO 1626 OF 2023)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 8 January 2024[1] refusing to grant an extension of time to apply for leave for judicial review and 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 13 January 2023.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 6 January 2022 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1984.  He claimed to have illegally entered Hong Kong from Mainland China on 14 October 2020 and was arrested by police on 14 July 2021.  He submitted a written signification indicating his intention to lodge a non-refoulement claim on 23 July 2021.  The applicant’s claim was made on the basis that if he returned to Vietnam, the money lender (Luu Dinh Duy) 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 [37] to [74] of the Board’s decision.

3.  By notice of decision dated 6 January 2022, 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 24 November 2022, during which the applicant gave evidence and answered questions from the Board.  The applicant did not have any experience or knowledge in the business of trading wooden artifacts, and he could not provide any pertinent details about why he would invest substantial capital into a business he was not familiar with.  The Board found that it was implausible that the money lender would have lent such a large loan to a rural applicant without any collateral or guarantee and charged a much lesser interest rate than what was common of loan sharks, and that there was inconsistency or conflict between his evidence and the available country of origin information (“COI”).  Further, the Board found that the applicant was not a credible witness, because his evidence was sketchy and minimalistic in nature bordering on being bald assertions, he delayed filing his claim for non-refoulement protection, and he lacked documentary support of his assertions.

5.  According to the Board’s findings of fact, it found that the applicant did not borrow money from Duy, he did not pay any interest owed, he was not mistreated by the Duy or anyone else, and Duy was a fictitious character.  As such, the Board found that the applicant would not face any risk or danger upon returning to Vietnam in the future.  For completeness and on the assumption that the applicant’s evidence was accepted, the Board found that there was no risk of harm faced by the applicant upon refoulement to Vietnam, reasonable state protection was available, and internal relocation was a practicable option for the applicant.

6.  In conclusion, the Board held that the applicant was not at risk in the event of refoulement to Vietnam.  By its written decision dated 13 January 2023, 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.  Long after the time limit of 3 months for applying for leave for judicial review as prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), on 13 September 2023, 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.  In the Form 86, his grounds of appeal were that the decisions of the Director and the Board were unreasonable and unfair, that the Director failed to give weight to the presence of state acquiescence, that the Board placed too much reliance on COI and failed to take into account the personal background and experience of the applicant, that the Board unreasonably required the applicant to respond to questions that he was not in a position to answer, that the Director showed an unfair attitude by failing to give sufficient weight to the corruption and incompetency of the administration of his country, and that the Board should have allowed the appeal based on its findings.  In the accompanying affirmation, he simply annexed the Board’s decision.

8.  An oral hearing was held on 8 December 2023, where the applicant was asked questions and was invited to make submissions.  The Judge considered the application on the basis of the documents and the applicant’s oral submissions.  On 8 January 2024, the Judge issued his decision, refusing to grant extension of time for leave for judicial review and refusing to grant leave to apply for judicial review.  The reasons were set out in [3] to [5], [17], [20] to [30] of the Form CALL-1 (as amended by Corrigendum dated 24 July 2024) as follows:

“ Late application

3. The leave application was filed eight months and one day after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than five months out of time. Leave to file the leave application out of time is required.

4. In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors. However, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”, see Po Fun Chan v Winnie Cheung[6], per Litton PJ. The delay in this case is so substantial that leave may be refused on this ground alone, unless the Applicant has a reasonable and credible explanation for the delay.

5. The Applicant did not give any explanation for the late filing in his Form 86 or supporting affirmation. At the hearing, the Court explored with him his explanation for the delay. He said he had never received the Decision as he was in prison custody since 28 December 2022. That was about a fortnight before the date of the Decision. He admitted he had never informed the Board of his change of address or his imprisonment. In Karamjit Singh[7], the Court of Appeal held it is the applicant’s duty to report his change of address to the Court. If he did not, he has to bear the consequence of his neglect. Hence, the Applicant failed to offer a reasonable explanation for the delay. However, instead of refusing him extension of time and henceforth dismissing his leave application, out of abundance of caution, the Court also considered the merits of his leave application.

…

17. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[8]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

…

Ground (1) – Unreasonable and unfair

20. This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting article 28 of the Basic Law and article 2 of the Bill of Rights and mentioning right to life. These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided he meets the criteria in any of the four applicable grounds under the USM. The question is whether the Applicant meets those criteria. The Board was of the opinion that the Applicant did not. That is a finding of fact exclusively within the province of the Board. The Applicant disagrees and complains that the Decision was unfair and unreasonable. These issues will be covered in the Court’s overall scrutiny of the Board’s Decision.

Grounds (2) – State acquiescence

21. For the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well. The Applicant complained that the Board failed to give proper weight to the presence of state acquiescence. But the issue of state acquiescence was never raised by the Applicant. There was no evidence that public officials or the Vietnamese government were involved, whether actively or passively, in the threats or assaults alleged by the Applicant, let alone his allegations were disbelieved by the Board. It is also the Applicant’s own evidence that he did not seek help from the authorities and not that the authorities refused to give him protection. Hence, there is no issue about state acquiescence in this case. This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case

Grounds (3) – Weighting on COI

22. The Applicant complains about the weighting given to the COI. After referring to COI from authoritative and credible sources, including the Country Policy and Information Note – Vietnam and Report of a Home Office fact-finding mission to Vietnam published by the United Kingdom Home Office in 2018 and 2019 respectively, the Board found adequate state protection available. It was only the Applicant’s choice not to access such protection because of his own personal belief or speculation. He also offered no COI to contradict those quoted by the Board

23. Likewise, the Board relied on authoritative and credible COI to reach its finding that internal relocation within Vietnam is possible. These COI include Country Information Report Vietnam 2019, published by the Department of Foreign Affairs & Trade of the Australian Government; Overview of Internal Migration in Vietnam, published by the UNESCO, UNDP, IOM and UN-Habitat; Country Policy and Information Note – Vietnam: Fear of illegal moneylenders, published by the United Kingdom Home Office. They are all from authoritative and credible sources. Again, the Applicant offered no COI to contradict the information therein.

24. As for the weight to be given to these COI, it is a finding of fact solely within the realm of the Board which this Court may not interfere save for errors of law, procedural unfairness and irrationality. There is no substance in this ground.

Ground (4) – Unfairness and impropriety when assessing whether to accept the Applicant’s explanations and in requiring him to response to questions that he was in no position to respond

25. Again, for the Applicant’s benefit, the Court treated his reference to the Director as including the Board as well. The Applicant gave no particulars of the explanations rejected by the Board and the questions asked by the Board which he complained of. Whether to accept or reject the Applicant’s evidence is part of the Board’s fact finding process. It a matter solely for the Board which this Court may not interfere save for errors of law, procedural unfairness and irrationality. As for the Applicant’s complaint about questions put to him which he was in no position to answer, it is a claimant’s obligation to cooperate with host state to answer questions relating to his claim. Whether the question put is one which the Applicant was in no position to answer or unable to give a satisfactory answer is a matter of finding of fact for the Board. There is no substance in this ground.

Ground (5) - Failure to take such arguments into account

26. The Applicant did not give particulars of what arguments he had presented to the Board which the Board failed to take into account and why such arguments would have affected the Board’s Decision.

Ground (6) – On the Board’s finding of fact, the appeal should have been allowed

27. This is an overall challenge of the Board’s Decision, which the Court may only interfere for errors of law, procedural unfairness and irrationality.

Conclusion

28. For the above reasons, none of the grounds advanced by the Applicant has substance. In overall terms, the Applicant is in fact attempting to challenge the Board’s finding of fact under the guise of judicial review.

29. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. The Board tested the Applicant’s evidence against authoritative and credible COI and found he was not a credible witness and his account of events is not credible. Hence, it found he had failed to prove factual basis to support his claim to protection. The Board gave full reasons for its findings. These are findings of fact, which the Court in a judicial review may not intervene, save for errors of law, procedural unfairness and irrationality in the Decision.

30. The Court could detect no errors of law or procedural unfairness in the Decision. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. The Decision is utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. This is all the more a good reason for refusing extension of time for the Applicant to file the leave application. Accordingly, leave to apply for judicial review is refused.”

Appeal to this Court

9.  On 18 January 2024, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were essentially that his late filing of the application for leave to apply for judicial review was due to being in prison since 28 December 2022, that he was detained and did not have the funds to engage a private lawyer, that he disagreed with the decisions of the Director and the Board as his case was determined unfairly, that the Director and the Board did not fairly take his unique situation into account, and that he did not have legal or language assistance in these legal proceedings. 

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 as directed by the Registrar of Civil Appeals, but we have considered his “written submissions” attached to his notice of appeal.

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 found there was no loan procured by the applicant from Duy as alleged, the applicant was never mistreated by Duy as alleged, and Duy was a fictitious character.  The Board found that the applicant was not credible and his alleged harm or risk of harm did not exist.  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 unfairness of the decisions, it consists of mere general and bald assertions regarding the decision of the Director and the Board without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  As to the complaints about lack of language and legal  assistance, it has also been repeatedly stated by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  We note that all the Court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  Further, we note that the applicant was legally represented in the initial preparation of his case by the completion of the non-refoulement claim form and screening interview with the Director, which formed the basis of his claim.  We do not find the non-availability of legal representation in the processes before the Board or the court to amount to any procedural unfairness.    

15.  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.

16.  The applicant’s appeal is accordingly dismissed.