RE NGUYEN BICH THUY

CACV 459 /2024, [2024] HKCA 1183

On appeal from [2024] HKCFI 2949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 459 OF 2024

(ON APPEAL FROM HCAL NO. 106 OF 2021)

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J U D G M E N T

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

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”)  given on 25 October 2024[1] dismissing her application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing her appeal against the decision of the Director of Immigration (“the Director”)  and rejecting her non-refoulement protection claim. 

2.  The applicant has consented to the appeal being determined by the Court of Appeal on the papers. 

3.  Despite directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support her appeal.  

The applicant’s claim

4.  The applicant is a Vietnamese national aged 42.  She entered Hong Kong illegally and surrendered to the Immigration Department on 26 November 2015.  She subsequently raised a non-refoulement claim based on fear of being harmed or killed by a moneylender due to her inability to repay her debt.  Her claim was succinctly set out by the Judge in [5] to [11] of the Form CALL-1.  It is not necessary to repeat it.  

The decisions of the Director and the Board

5.  By a Notice of Decision dated 16 May 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

6.  The applicant’s appeal against the Director’s decision was heard before the Board on 15 November 2017.  By a decision given on 5 January 2018, the Board dismissed the appeal.  In gist, the Board found the applicant’s case inherently improbable and rejected it in its entirety.  The Board also found state protection reasonably available, which would reduce or remove any risk of harm that the applicant might face.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

7.  The applicant filed a Form 86 and an affirmation on 1 February 2021 to seek leave to apply for judicial review against the decision of the Board.  The applicant did not provide any grounds for seeking relief. 

8.  The application was also seriously out of time.  Order 53 rule 4(1)  of the Rules of the High Court, Cap. 4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  As the Board’s decision was made on 5 January 2018, the applicant’s application was almost three years late.  She has not provided any explanation for the delay.

9.  The Judge dealt with the leave application on the papers.  By a Form CALL-1 dated 25 October 2024, he dismissed the application on the basis that the intended judicial review had no prospect of success.  His reasons were encapsulated in [16] as follows: 

“16. Having rigorously examined the [Board’s decision], the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and rejected almost the entirety of her case. This is a finding fact solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicant’s application for leave to apply for judicial review is refused.”

The appeal

10.  By a notice of appeal filed on 1 November 2024, the applicant sought to appeal the Judge’s decision to this court.  The grounds of appeal stated that (1)  the applicant would be in danger or might die if she returned to Vietnam because the gangsters there were cruel and violent, had no regard for the law and would readily kill people; (2)  internal relocation was not a viable option; and (3)  the Director did not consider the applicant’s human rights under the Basic Law and various laws and international covenants.

11.  The applicant has also filed an affirmation in which she asserted that there is a good ground of appeal which has not been considered in her leave application.  We will not consider this affirmation as no leave has been sought or given to the applicant to adduce new evidence on appeal.  In any event, what was stated in the affirmation is a mere assertion without any supporting details or elaborations.  

Our reasons for decision

12.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), who are the 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.  Further, an appeal to the Court of Appeal is not an avenue for the applicant to re-argue the case.  The Court of Appeal will not interfere with the first instance decision unless it is shown that the first instance judge has erred.

13.  We are of the view that the matters set out in the notice of appeal do not amount to any viable ground of appeal.  Importantly, the applicant has not pointed to any error in the Judge’s decision.  Further, the Board had rejected the applicant’s evidence and case in its entirety.  Both before the Judge and in this appeal, the applicant has not identified any error in the Board’s assessment of the evidence and finding of facts, or any irrationality or procedural irregularity in the Board’s decision.  In light of the Board’s findings, the applicant’s assertions that she will be in danger if she returns to Vietnam has no supporting foundation.  Moreover, the applicant has given no explanation for her delay in bringing the judicial review.  In the circumstances, the Judge’s decision to dismiss the application for leave to apply for judicial review cannot be faulted.

14.  At [3] of the From CALL-1 as corrected by the Corrigendum dated 24 December 2024, it was mentioned that when the Judge came to deal with the Form 86, he was informed that the applicant had been removed from Hong Kong to Vietnam.  Subsequently, by a letter dated 19 December 2024, the Department of Justice on behalf of the Director informed the Judge that due to a miscommunication, the Court had been wrongly informed that the applicant had been removed back to Vietnam when in fact she has remained in Hong Kong.  We do not consider the correctness of the Judge’s decision is in any way affected by this misinformation having regard to the fact that the applicant had provided no grounds in support of her intended judicial review and had also given no explanation for her serious delay.  

15.  For the above reasons, the applicant’s appeal is devoid of merits.  Accordingly, we dismiss the appeal.