HOANG DINH DUY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 79/2023, [2024] HKCA 424

On Appeal From [2023] HKCFI 558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 79 OF 2023

(ON APPEAL FROM HCAL NO 724 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”)  on 2 March 2023[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 10 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 24 September 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Vietnam born in 1981.   He had previously entered Hong Kong illegally and was repatriated to Vietnam on 11 October 2011.  The applicant last entered Hong Kong illegally through Mainland China and was arrested by the police on 29 January 2018.  The applicant was convicted of, inter alia, being in possession of a forged identity card, and was sentenced to 15 months’ imprisonment.  Whilst in prison, he submitted a written signification indicating his intention to lodge a non-refoulement claim in Hong Kong on 10 May 2018.  The applicant’s claim was made on the basis that if he returned to Vietnam, his creditor, Van Toi, and the middleman, Trung, would harm or kill him due to his inability to repay the loan.  He also claimed he was afraid that he would not receive adequate medical care in Vietnam for his heart problem and that he would not find employment.  The factual background of the applicant’s claim was set out at [4] to [11] of the Board’s decision.

3.  By notice of decision dated 24 September 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

4.  The applicant appealed to the Board against the Director’s decision.  The Board did not hold an oral hearing and determined the appeal based on the available documents.  The Board considered that the applicant was not severely harmed in the alleged previous incidents when the creditor and his men had opportunities to inflict more serious harm, that the creditor and the middleman relied on the applicant to repay the loan so they would not kill their source of fund, and that the dispute between the applicant and his creditor is of a private nature with no state involvement.  It also considered that the available COI did not support the applicant’s claim that the healthcare system in Vietnam was inadequate as alleged.

5.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Vietnam.  It found the applicant’s injuries and experiences from the previous incidents did not amount to the minimum requisite level of harm to establish any of the four risks.  The Board found that it was a localized risk and that internal relocation was reasonable and state protection was available to the applicant as supported by the COI.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Vietnam.  By its written decision dated 10 January 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decisions in the court below

6.  On 15 March 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply repeated the basis of his claim for non-refoulement protection and annexed the Board’s decision.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 2 March 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review on the basis that the role of the Court in judicial review is supervisory and must not usurp the fact finding power vested in the Director and the Board.  The Judge did not find any error of law or procedural unfairness in the Board’s decision.  The findings of the Board are not challengeable as Wednesbury unreasonable or irrational and the applicant failed to show that he has any realistic prospect of success in the proposed judicial review.

Appeal to this Court

8.  On 15 March 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were, essentially, that he would be beaten or even killed by the gangsters, that the Director failed to appreciate or properly assess the viability of the applicant’s internal relocation within Vietnam, and that it would be possible for the creditor and gangsters to find the applicant’s relocated residence within Vietnam given their nationwide network. 

9.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.

10.  The applicant has not lodged any written submissions.

Discussion

11.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

12.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s risk of harm was a localized one and did not amount to the requisite level of harm, with no state involvement.  Also, it found that internal relocation was viable and state protection was available to the applicant. These are findings of fact open to the Board based on the evidence and for the reasons it gave.

13.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  The grounds stated in his Notice of Appeal are not proper grounds and fail to identify any error in the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

14.  The applicant’s appeal is accordingly dismissed.