RE MAU THI CHIN

CACV 69/2022

[2022] HKCA 1379

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 69 OF 2022

(ON APPEAL FROM HCAL NO 1276 OF 2021)

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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 an appeal by the applicant against the decision of Deputy High Court Judge P Li (“the Deputy Judge”)  set out in the Form CALL-1 dated 26 January 2022, by which the Deputy Judge refused her application for leave to apply for judicial review (“the Leave Decision”)  ([2022] HKCFI 301).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 18 August 2021 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 30 November 2020 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

3.  On 8 February 2022, the applicant indicated her consent for this appeal to be disposed of on paper.  Accordingly, we have proceeded to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Vietnam.  She last entered Hong Kong illegally on 8 June 2020.  On 20 June 2020, she was arrested by the police for illegal remaining and breach of deportation order.  On 2 July 2020, she raised her second non-refoulement claim on the basis that she would be harmed or killed by her creditor who was a leader of a triad society.[1]  Factual details of the applicant’s claim were summarised by the Deputy Judge at [2] - [6] of the Leave Decision.

5.  By a Notice of Decision dated 30 November 2020, the Director rejected the applicant’s second non-refoulement claim.  His decision covered all applicable grounds including torture risk[2], BOR2 risk[3], BOR3 risk[4] and persecution risk[5].  Taking into account all relevant circumstances, the Director considered that her non-refoulement claim was not substantiated.

6.  On 18 February 2021, the applicant appealed against the Director’s Decisions to the Board. The applicant attended a hearing before the Board on 5 August 2021.  The Board dismissed her appeal on 18 August 2021.  The Board found that the applicant failed to establish that she was indebted to a loan shark in the amount as claimed.  The Board also found that internal relocation would be available to the applicant. Having assessed the evidence, the Board considered that the applicant had failed to substantiate her claim on the applicable grounds and accordingly, his appeal was dismissed.

The Leave Decision

7.  On 10 September 2021, the applicant applied for leave to apply for judicial review against the Board’s Decision.  In her Form 86 and supporting affirmation, the applicant did not state any ground of review.  In her supporting affirmation, she only stated that she could not return to Vietnam as her life would be in danger.

8.  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 [10] - [13] of the Leave Decision:

“10. The applicant filed the leave application on 10/9/2021. She maintained that her life would be in danger if refouled. She disagreed with the TCAB decision.

11. In judicial review, it is the duty of the TCAB to ascertain the facts and assess credibility. This court seldom interferes.

12. The adjudicator had set out the legal principles in detail. He had considered the evidence thoroughly. The implausibility of the huge loan was obvious. The adjudicator was justified in rejecting the evidence. I agree with the decision of the adjudicator. There is no error of law or procedure.

Conclusion

13. In my judgment, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.”

The Appeal

9.  On 8 February 2022, the applicant filed a Notice of Appeal and a supporting affirmation in support of her appeal against the Leave Decision.  In her Notice of Appeal, she claimed that the gravity of her circumstances had not been weighed or realised by the Director and the Board while considering her non-refoulement claim and that she should be given an opportunity to plead her case properly.  In her supporting affirmation, she further claimed that she would face the risks of being tortured or killed by her creditor as she could not repay her loan and that she could not return to Vietnam.

10.  Pursuant to the directions made by the Registrar of Civil Appeals on 8 February 2022, the applicant lodged her written submissions on 17 February 2022.  In those submissions, she repeated the alleged factual basis and procedural history of her non-refoulement claim.  She then cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  She submitted that the Board acted in a procedurally unfair manner without properly assessing her credibility.  She further referred to R v Ministry of Defence ex p Smith[1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  She also claimed that her life would be seriously threatened or killed by the gangsters in Vietnam as they were cruel and violent and she could not repay her debt.  She also asserted that the Immigration Department did not consider her human rights under the Basic Law / Hong Kong Human Rights and Democracy Act / International Covenant on Civil and Political Rights / International Covenant on Economic, Social and Cultural Rights and ordered for her deportation.

Discussion

11.  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].

12.  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.

13.  At the outset, nowhere in her Notice of Appeal, supporting affirmation or written submissions did the applicant identify with specific particulars how the Deputy Judge had erred in reaching the Leave Decision.  Her complaints are mainly directed at the Board and the Director. The allegations raised in her written submissions were also new and not raised before the Deputy Judge.  It is not permissible to run such new complaints in the appeal: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].

14.  In any event, her allegations have no substance.  Her allegations are bare, vague and unsupported by specific particulars.  More importantly, as repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, Country of Origin information and risk of harm, state protection and viability of internal relocation are 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].  As correctly noted by the Deputy Judge, there was no error of law or procedural unfairness in the proceedings before the Board.  We see no basis to interfere with the Leave Decision.

15.  Accordingly, the applicant’s appeal has no merit and we dismiss the appeal.