VU THI QUE v. TORTURE CLAIMS APPEAL BOARD

CACV 68/2023, [2023] HKCA 1374

On Appeal From [2023] HKCFI 450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 68 OF 2023

(ON APPEAL FROM HCAL NO 896 OF 2019)

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J U D G M E N T

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

Introduction

1.  On 20 February 2023, DHCJ Bruno Chan (“the Judge”) refused 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 (“the Board”) dated 29 March 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 8 November 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 3 March 2023, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, she lodged a letter with the Court indicating her consent to have this appeal disposed of on paper without an oral hearing.

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 3 March 2023, the applicant should lodge her written submission on or before 17 March 2023.  She failed to do so.  The Registrar further directed that in the event that the applicant failed to lodge her written submissions by that date, she will be deemed to have abandoned her right to rely on written submissions, and the application will be referred to the Court of Appeal for consideration based on the available documents and materials. 

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing. 

Background

5.  The Applicant is a national of Vietnam.  She entered Hong Kong illegally on 29 March 2015 and surrendered to the Immigration Department on 30 March 2015.  She first raised a non-refoulement claim on 30 March 2015 and subsequently filed a non-refoulement claim form on 22 September 2017 alleging that if refouled, she would be harmed or killed by her creditors over her unpaid debts.  The factual background of this case is succinctly summarized by the Judge in [2] – [5] of the Form CALL-1 ([2023] HKCFI 450).

6.  By a Notice of Decision dated 8 November 2017, the Director assessed the applicant’s claim on all applicable grounds including BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

7.  The applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 8 February 2019 and by the decision dated 29 March 2019, the Board dismissed her appeal and confirmed the Director’s decision.  The Board found that on the applicant’s own evidence, the creditors only threatened the applicant verbally without inflicting any physical harm, which indicates that the creditor had no intention to seriously harm the applicant other than to put pressure on her to repay her loans [39] – [40].  Further, her claim was only a private monetary dispute and there was no evidence to suggest any state involvement; her allegation against police inaction was a bare assertion without any corroborative evidence [45] – [48]. Objective country of origin information (“COI”) suggested that there is reasonable state protection [51] – [61].  In any event, internal relocation is also a viable option [97].  For the aforesaid reasons, her non-refoulement claim failed on all applicable grounds. 

Decision of the court below

8.  On 2 April 2019, the applicant filed her Form 86 for leave to apply for judicial review of the decision of the Board, but did not provide any ground for seeking relief in her Form 86.  In her supporting affirmation, she merely repeated her claim that if refouled, she would be harmed or even killed by her creditors.

9.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  By the decision dated 20 February 2023, the Judge refused to grant leave to the applicant to apply for judicial review.  The reasons for the refusal were set out at [10] – [13] of the Form CALL-1 as follows:

“10. On 2 April 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim as before of fear of being harmed or killed by her creditor as before but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

11. 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 her 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.

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

13.   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.”

Appeal to this Court

10.  On 3 March 2023, the applicant filed a Notice of Appeal against the Judge’s decision.  In her Notice of Appeal, she stated the following grounds of appeal:

(1)  If the applicant returns to Vietnam, she will be tortured, beaten or even killed because the creditors and gangsters in Vietnam are different from those in Hong Kong, and most of them are cruel and violent.  They disregard the law and are willing to kill people.

(2)  It is completely unfeasible for the applicant to relocate to another place in Vietnam as there will be many difficulties and obstacles.  The nationwide social network of the gangsters and their clandestine connections with the corrupt people in the government and police apparatus make it possible for the creditor and gangsters to find out the applicant’s new residence.

11.  In her supporting affirmation of the same date, she deposed:

“…I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

Additionally, I was informed that the [Director] and the [Board] did not see the grounds to reverse their decision.”

Legal principles

12.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

13.  The grounds provided by the applicant in her Notice of Appeal are just bare assertions without particulars or basis.  She did not, in her Notice of Appeal or supporting affirmation, provide any proper ground of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.

14.  It is clear from the Board’s decision that even on the applicant’s own evidence, she did not suffer any physical harm or injury from her creditors in Vietnam, and the dispute was private in nature without any state involvement.  Objective COI suggested that there is reasonable state protection in Vietnam, and internal relocation is a viable option.  It is perfectly open for the Board to reach its findings and conclusions, and the Court would only intervene if there were valid public law grounds.  As with the Judge, we do not see any in this case.

15.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review. 

Order

16.  For the above reasons, this appeal is dismissed.