RE CAO THI SINH

CACV 287/2020

[2021] HKCA 513

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2020

(ON APPEAL FROM HCAL NO. 1845 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) on 14 July 2020 in HCAL 1845/2018 refusing to grant leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 3 September 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 27 January 2017.

2.  The applicant consents to her appeal to be disposed of on the papers without an oral hearing.

Background

3.  The applicant is a national of Vietnam who entered Hong Kong illegally on 20 May 2015 and was arrested by the police on 10 June 2015.  Record showed that it was her fourth illegal entry into Hong Kong and she was removed back to Vietnam on the last three occasions.  On 15 June 2015, she lodged her non-refoulement claim by way of written representation on the basis that if she returned to Vietnam she would be harmed or killed by her creditor, Tran Van Yen, and his men for failing to repay a loan.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1589. 

4.  By the Notice of Decision dated 27 January 2017, the Director decided against the applicant’s claim. The Director’s decision covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4] grounds.

5.  The applicant appealed to the Board and the appeal was heard on 27 June 2018.  By the Board’s decision of 3 September 2018, the appeal was dismissed.  For the reasons stated in [111] and [134] of the decision, the Board rejected the applicant’s case on credibility as her story was a bare assertion based on unsupported and unreliable claims, speculations and hearsay that the Board could not place any credence or evidential weight. In any event, reasonable state protection is available and internal relocation is a viable option.  For the aforesaid reasons, her claim for non-refoulement protection failed on all applicable grounds.

The Judge’s decision

6.  On 5 September 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board.  She did not provide any grounds for seeking relief.  In her supporting affirmation, she merely repeated her claim that if she returned to Vietnam she would be killed by her creditor without putting forward any proper or valid grounds for her intended challenge. 

7.  The leave application was heard on 11 December 2019 and by the CALL-1 Form of 14 July 2020, the application for leave to apply for judicial review was refused.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge gave the following reasons in refusing leave at [13] to [17] of the CALL-1 Form:

“13.  The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and she could understand the Board’s Decision herself.

14.  I put the Board’s findings to her and asked her if she had any comments on them. She said that she would not be able to relocate herself in Vietnam because she could not obtain the paper from the authority.

15.  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.”

16.  Her reasons and comment on relocation do not assist her because they are the facts of her case. The Board had considered the facts and come to its own conclusions. The applicant has not given me any reasons to interfere with the Board’s Decision.

17.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.”

The Appeal

8.  On 23 July 2020, the applicant filed her Notice of Appeal. She did not provide any grounds of appeal save for saying in her supporting affirmation that “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.”  She urged the Court to exercise its discretion to allow her appeal.

9.  In compliance with the direction given by the Registrar of Civil Appeals on 8 October 2020, the applicant lodged her written submissions on 12 October 2020 in which she advanced the following grounds of appeal:

(1)  The Judge’s decision was wrong.  She had no legal representation after the Director’s decision and she did not receive adequate language assistance which is procedural unfairness.

(2)  High standards of fairness are required in determination of a torture claim.  To appeal against the Judge’s decision involves a different legal process and it requires further legal advice.

(3)  The Judge erred in finding no errors of law in the Board’s decision, particularly when the Board only drew inference negative to her case and it was not a balanced view of the information.

(4)  The Judge failed to acknowledge the presence of state acquiescence and it led to an unfair outcome of rejecting her non-refoulement claim. The Vietnamese army holds the power in Vietnam and it would not stand for people’s rights.

(5)  The Director and the Judge had failed to examine or give sufficient weight to the extended concept of state acquiescence and the government officials fail to protect its citizens against risk of torture.

(6)  She urged the Court of Appeal to set aside the Judge’s decision and to grant leave to apply for judicial review on a higher standard of fairness.

General Principles

10.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

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

Discussion

11.  First, as a matter of law, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribes that a non-refoulement claimant has an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176. Thus, the applicant’s complaint on the lack of legal assistance is unmeritorious.

12.  Second, regarding the applicant’s complaint on the lack of language assistance, we note that all the documents filed in court including the notice of appeal and the written submissions were written in English.  This indicates that either the applicant is herself conversant with the English language or that she has access to language assistance of her own if needed.  We further note that the applicant was able to proceed with her leave application at the lower court and the present appeal within a few days from the relevant decisions being made.  Unlike what she seeks to argue, her rights to pursue her case have not been deprived by the language difficulty claimed.

13.  Third, as mentioned in [10(1)] of this judgment, the role of the Court in a judicial review is not to provide a further avenue of appeal against Board’s decision and the Court only intervene if there are valid public law grounds.  In this case, we are satisfied that the Judge had reviewed the Board’s decision carefully and we find no flaw in the Judge’s decision.

14.  Lastly, after our careful review of the Board’s decision, we agree with the Judge that there is no proper basis for disturbing the Board’s finding that apart from all the inconsistencies and implausibility regarding the application’s account of event in relation to the alleged attacks suffered by her and her husband in 2014[5], the alleged arson in October 2014[6], the alleged traffic incident happened to her son and father-in-law in 2016[7] etc., there was no evidence showing any of her alleged ill-treatment originated from state agent and it was just a private dispute between moneylender and debtor with no state acquiescence in the applicant’s case.

15.  In all, after our careful review of the papers available, we do not find any error of law or procedural fairness or irregularities in the Board’s decision, nor any failure on its part to apply high standard of fairness in its consideration and assessment of the applicant’s claim.  One Judge did not err in refusing her application for leave to judicial review.

16.  For these reasons, we dismiss the appeal.