RE LE HONG NAM

CACV 207/2024, [2024] HKCA 723

On Appeal From [2024] HKCFI 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 207 OF 2024

(ON APPEAL FROM HCAL NO 472 OF 2024)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 16 May 2024 ([2024] HKCFI 1307) (“the Leave Decision”) dismissing his application for extension of time and refusing his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”) dated 3 June 2021 (“the Board’s Decision”), whereby the Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 20 January 2021.

2.  On 27 May 2024, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

BACKGROUND

3.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 5 September 2019 and was arrested by police on 29 February 2020.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts.  Details of the applicant’s claim were summarised by the Judge at [1] ‑ [5] of the Leave Decision.

4.  By a Notice of Decision dated 20 January 2021 (“the Director’s Decision”), the Director dismissed the applicant’s non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3], and persecution risk[4].

5.  The applicant appealed the Director’s Decision to the Board.  By the decision dated 3 June 2021, the Board dismissed the applicant’s appeal, and confirmed the Director’s Decision.  The Board’s reasons were summarised by the Judge at [9] of the Leave Decision:

“9. In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his creditor that caused him to leave his home country to come to Hong Kong to seek protection, that there was no reliable evidence of any real intention of his creditor to seriously harm or kill him other than to press him to repay his debts, and that in any event it was a private monetary dispute between him and his creditor only without any official involvement that state or police protection would be available to the Applicant upon his return to if resorted to Vietnam as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.  On 15 March 2024, the applicant filed a Form 86 to apply for leave to apply for judicial review against the Board’s Decision.  By that time he was late for more than 2.5 years in making his application.  He did not give any intended ground for review and in his supporting affirmation he merely stated that he would face the risk of being killed or harmed if he returned to his home country.

7.  As he did not request for an oral hearing, the Judge considered his application on paper.  On 16 May 2024, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review, for the following reasons:

“13. In the Applicant’s case, a delay of more than 2 ½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 3 June 2021 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

14. As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.”

THIS APPEAL

8.  In his Notice of Appeal filed on 27 May 2024, the applicant reiterated that his life would be seriously threatened as creditors and gangsters might harm or kill him.  He further claimed that as he was not an active person, internal relocation would not be feasible.  He also claimed that the Immigration Department failed to consider his human rights under various legislations.  In his supporting affirmation dated 27 May 2024, he only vaguely stated that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.  However, he did not specify what that said ground was.

9.  Contrary to the directions of the Registrar of Civil Appeals dated 27 May 2024, the applicant did not lodge any written submissions.

DISCUSSION

10.  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’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)]).

11.  Further, the assessment of evidence, COI, 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.

12.  In our view, his appeal is a non-starter.  He fails 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 Leave Decision.  All his allegations are vague, bare and general without any specific particulars or evidence in support.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  None of his allegations are proper grounds of appeal.  His appeal must fail on this basis alone.  In any event, we have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.  We see no basis to disturb the Leave Decision.

13.  The applicant’s appeal against the Leave Decision has no merit and is dismissed.