DINH XUAN TUNG v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 202/2023, [2023] HKCA 1281

On Appeal from [2023] HKCFI 1555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 202 OF 2023

(ON APPEAL FROM HCAL NO 950 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 15 June 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 22 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 December 2016.

BACKGROUND

2.  The Applicant is a national of Vietnam. He claimed that he entered Hong Kong illegally via the Mainland on 16 December 2014. He surrendered himself to the Immigration Department on the next day, and lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor (Hoang) due to a loan dispute. Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

3.  By a Notice of Decision dated 28 December 2016 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 22 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Judge summarised the Board’s Decision at §§8-10 of the CALL-1 Form as follows:

“[8] The applicant appealed the Director’s Decision to the Board. On 9 January 2019, the Board conducted an oral hearing for his appeal, during which he was legally represented. The applicant and his duty lawyer submitted supplementary materials in relation to the violent acts by the loan sharks in Vietnam. The Board found that these materials were merely general information that did not assist the applicant’s case [52]-[55].

[9] Having considered the evidence, the Board did not accept that the applicant would face a risk of harm if refouled [56]. In particular, the Board rejected the duty lawyer’s submissions that the applicant’s appeal should be allowed on humanitarian grounds [60]. It also rejected the applicant’s claim as it was untruthful. The Board refused to accept that the applicant ran a fish breeding business. It also rejected the existence of a loan agreement [63]-[72]. Further, the applicant’s evidence on the assaults were inconsistent and lacked details [73]-[74]. Also, the Board was not persuaded that the applicant had sustained severe injuries; that Hoang intended to kill him; that the authorities would not assist him; and that his life was in danger [75]-[85]. In any event, state protection and internal relocation were both viable options [86]-[95].

[10] In assessing the individual grounds, the Board also found that the loan dispute was private in nature without state involvement [106]. For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.”

THE JUDGE’S DECISION

5.  On 9 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, he repeated his claim that his life would be in danger if he was refouled to Vietnam, and said that he was afraid that his creditor (mistakenly referred to as his “debtor” in the affirmation) and the subordinates of his creditor could inflict more serious harm or even kill him because he was insolvent.

6.  On 15 June 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[13] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board…

[14] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[16] The Board, for the reasons given above, had rejected the applicant’s evidence on the facts. There is no valid ground from the applicant to challenge the Board’s Decision.

[17] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[18] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

THIS APPEAL

7.  In his Notice of Appeal dated 29 June 2023, the Applicant repeated his claim that his life would be seriously threatened and he would probably die if he returned to Vietnam because creditors and gangsters in Vietnam were cruel and violent, and were willing to kill people to satisfy their anger and ferocity. He disagreed with the Director that he could relocate to live in another part of Vietnam away from his home for various reasons, and argued that the Immigration Department did not consider his human rights under various instruments, including the Basic Law and the International Covenant on Civil and Political Rights.

8.  The Applicant failed to lodge any written submissions in support of his appeal in accordance with the directions of the Registrar of Civil Appeals dated 29 June 2023. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

DISCUSSION

9.  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 v Director of Immigration [2018] HKCA 524 at §14(6)).

10.  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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant has failed to show any error in the Judge’s decision refusing to grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

12.  The Applicant’s appeal against the Order has no merit and is dismissed.