RE BUI VAN BAN

CACV 243/2022

[2023] HKCA 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 243 OF 2022

(ON APPEAL FROM HCAL NO. 158 OF 2022)

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JUDGMENT

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

I.  The appeal

1.  This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge To (the ‘Judge’) of 6 June 2022 refusing to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (the ‘Director’) dated 18 October 2021 and of the Torture Claims Appeal Board / Non - refoulement Claims Petition Office (the ‘Board’) dated 20 January 2022.

2.  On 16 June 2022, the applicant consented to this appeal being determined on paper without an oral hearing.

3.  Despite the directions contained in the letter from the High Court to the applicant dated 16 June 2022, the applicant failed to lodge the written submissions by the stipulated time.  Pursuant to the said directions, the applicant is deemed to have abandoned his right to rely on written submissions.  We will deal with the appeal on paper based on the available documents and materials.

II.  Background

4.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 23 December 2013 and surrendered to the Immigration Department on 27 December 2013.  He raised a non - refoulement claim on the basis that, if he returned to Vietnam, he would be harmed by a moneylender because of his inability to repay the outstanding loan owed to the moneylender.

5.  The details of the applicant’s claim have been summarised by the Judge at [6] to [15] of the Decision.

III.  The Director’s Decision

6.  The Director’s decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV.  The Board’s Decision

7.  After a hearing held on 6 January 2022, the Board dismissed the applicant’s appeal on 20 January 2022 (the ‘Board’s Decision’).

8.  The Board identified numerous inconsistencies between the applicant’s evidence in his non-refoulement claim form and his testimony before the Board.  The Board found various aspects of the applicant’s account of events to be incredible.  In conclusion, the Board was not satisfied that the applicant faced a real risk of harm if the applicant is returned to Vietnam.  Given his age, education and work experience, the Board also found that the applicant could safely relocate to other parts of Vietnam.

V.  Decision of the Judge

9.  The applicant filed a Form 86 and a supporting affirmation on 22 February 2022.  He did not put forward any grounds for the intended judicial review in his Form 86.  In his affirmation, he stated that he did not agree with the Board’s Decision and claimed that his life would be in danger if he was returned to Vietnam.

10.  The applicant did not request an oral hearing before the Judge.  The Judge then decided that it was appropriate to determine the application on paper without an oral hearing.

11.  Even though the applicant did not raise any valid ground for judicial review, the Judge examined the Board’s Decision, the papers and the evidence with anxious scrutiny, having regard to the usual grounds for challenge in a judicial review such as error of law, procedural unfairness, unreasonableness and irrationality.  The Judge did not detect any reasonably arguable ground for judicial review against the Board’s Decision. The Judge was not satisfied that there was any real prospect of success in the applicant’s intended application for judicial review and refused his leave application.

VI.  Grounds of appeal

12.  In the Notice of Appeal filed on 16 June 2022, the applicant did not identify any error of law in the Judge’s Decision or any other ground for suggesting that the Decision was plainly wrong.  Instead, the applicant raised bare assertions which essentially seek to challenge the findings of fact by the Director and the Board that (1) it was possible for the applicant to safely relocate to another part of Vietnam and (2) the applicant did not face a real risk of harm if he is returned to Vietnam.

VII.   Our view

13.  In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  As the Judge pointed out in [24] of the Decision, the Board found that the applicant had failed to prove the factual basis to support his non - refoulement claim.  This is a finding of fact solely within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness or irrationality.  The applicant has not identified any valid ground for judicial review in the present case.

14.  We will repeat the approach of this Court in dealing with cases of this nature:

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 the issue at hand, the Court should not usurp the role of the Board. 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).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in their decisions.

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.  In the determination for 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 a refusal of leave to apply for judicial review in non - refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  In our view, the applicant’s appeal is devoid of any merits.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.