RE PHAM VAN PHA

CACV 247/2021

[2022] HKCA 120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 247 OF 2021

(ON APPEAL FROM HCAL 1479 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 7 May 2021 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) given on 18 July 2018, which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 16 November 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Vietnam, is a fear of being harmed or even killed by 3 loan sharks to whom he owes money.

3.  The circumstances giving rise to such alleged fear have been set out in paragraph 6 of the Director’s Decision, paragraphs 7 to 17 of the Board’s Decision and [2] to [4] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 1270 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant was a fisherman.

(2)  In 2012, his fishing boat became dilapidated and unseaworthy.

(3)  To repair the boat, the applicant borrowed from 3 loan sharks sums totalling 1 billion Vietnamese dong.

(4)  In addition, he obtained another 2 billion Vietnamese dong from a bank, secured by a mortgage of his land and house.

(5)  The monthly interest on all 4 loans was 22 million Vietnamese dong.

(6)  The applicant began to default in repayment by October 2013.

(7)  The bank foreclosed on the mortgage. However, the value of the applicant’s land and house was just about 500 million Vietnamese dong. And the applicant remained indebted to the bank after the foreclosure.

(8)  The 3 loan sharks also pressed for repayment. They threatened to kill the applicant. The applicant and his wife and son were beaten up multiple times.

(9)  To avoid further harm, in about mid 2016, the applicant’s family moved to his wife’s maiden home.

(10)  In April or May 2017, one of the loan sharks kidnapped the applicant and took him to a warehouse where he was tied up and assaulted by some strangers. They also threatened to sell his kidneys.

(11)  The applicant escaped to Mong Cai after the assailants had left.

(12)  The applicant had not reported any of these incidents to the police.

(13)  While in Mong Cai, the applicant maintained contacts with his old neighbours who told him that some triad members had gone to his old house to look for him. They shouted his name and asked the people around for his whereabouts.

(14)  To avoid detection, the applicant moved around in Mong Cai.

(15)  He eventually came to Hong Kong because a clansman advised him that the Hong Kong government runs a non-refoulement scheme.

(16)  The applicant left Vietnam for Mainland China in May 2017, using his Vietnamese passport.

Illegal entry into Hong Kong and lodgment of NRF Claim

5.  The applicant last entered Hong Kong illegally in on 25 May 2017[1]. He surrendered to the Immigration Department on 1 June 2017. He raised the NRF Claim by written representation dated 11 July 2017. He completed a Non-Refoulement Claim Form dated 20 October 2017 (“NCF”) and attended a screening interview with the Director’s representative(s) on 13 November 2017 (“Interview”).

6.  After considering the information provided by the applicant in the NCF and at the Interview, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)  The future risk of harm was low.

(2)  The applicant’s evidence did not establish a real or foreseeable risk of harm upon his return to Vietnam.

(3)  The alleged past harm had not attained the requisite minimum level of severity for non-refoulement protection.

(4)  The perceived risk of harm, if any, arose from the applicant’s personal disputes with his creditors, which had nothing to do with the Vietnamese government or its authorities.

(5)  Reasonable state protection and internal relocation alternatives would be available to the applicant in Vietnam to lower or even negate the perceived risk, if any.

Appeal to Board and Board’s Decision

7.  The applicant appealed to the Board.

8.  The Board dismissed the applicant’s appeal on paper on all 4 applicable grounds.

9.  More specifically, there was insufficient evidence before the Board to show a real or foreseeable risk of harm upon the applicant’s return to Vietnam. Any suck risk would be low. The 3 loan sharks and their underlings had ample opportunities to, but did not, kill or seriously harm the applicant. The purpose of the ill-treatment they inflicted on the applicant and his family was to recover the loans owed by the applicant, rather than killing or harming them for the sake of doing so. In any case, the ill-treatment described by the applicant did not attain the requisite minimum level of severity. Further, the perceived risk of harm underlying the NRF Claim arose from private disputes between the applicant and his creditors, which had nothing to do with the Vietnamese government. There is no indication that the applicant’s creditors were acting in any official capacity or with the Vietnamese government’s consent. Reasonable state protection and internal relocation alternatives are available to the applicant in Vietnam.

Application for leave for judicial review and Judge’s Decision

10.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1479/2018 on 27 July 2018, the applicant applied for judicial review of the Board’s Decision without stating any proposed ground. In his supporting affirmation filed on the same day, the applicant simply repeated he would face a genuine and substantial risk of being subject to torture or even be killed by his creditors in Vietnam because he cannot repay his debts.

11.  The applicant did not request for an oral hearing. After considering the material before him, the Judge refused leave on paper for the reasons set out in [9] to [12] of the Form CALL-1:

“9. … in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Board, I do not find any reasonably arguable basis for his intended challenge.

10. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Vietnam, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to Court of Appeal - grounds of appeal and submissions

12.  By the notice of appeal filed herein on 14 May 2021, the applicant appealed against the refusal of leave for judicial review on the ground that “the gravity of [his] circumstances have noted been weighed or realized by both putative Respondents while considering [his] non-refoulement claim” (sic) and that “he should be given an opportunity to plead [his] case properly.”

13.  By skeleton arguments signed by counsel, Mr Charles KC Chan, and lodged on 26 August 2021, the applicant advanced 6 grounds of appeal.

14.  For present purpose, it is sufficient for us to consider and discuss just the first ground, which is that the Board’s dismissal of the applicant’s appeal without giving the applicant an oral hearing amounted to procedural unfairness.

15.  We have not overlooked the fact that this ground (and indeed the other 5 grounds) was not before the Judge. However, this court has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice. See, for example, Re MD Zahidur Rahman Manik [2018] HKCA 766 and Re Khan Kamal Almed [2019] HKCA 377. Given the importance of the point and the possible prejudice suffered by the applicant, we shall consider such new ground.

16.  The appeal was heard on 17 January 2022. The applicant, who is now acting in person, did not appear at the hearing.

Discussion

17.  In an application for judicial review of the Board’s decision to uphold the Director’s rejection of a non-refoulement claim, the Court of First Instance will intervene by way of judicial review for errors of law, procedural unfairness or irrationality on the part of the Board. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

18.  Pursuant to s 12 of Schedule 1A to the Ordinance, the Board does have the discretion to determine an appeal without a hearing if it is satisfied that the appeal can be justly determined without a hearing.

19.  It goes without saying that such discretion should be exercised in a judicious and principled manner.

20.  The high standards of fairness required in the screening of a claim for non-refoulement protection, in which the Director and the Board are expected to take an active role, is a weighty consideration favouring the holding of an oral hearing.

21.  In this regard, in ST v Betty Kwan [2014] 4 HKLRD 277 at [37]-[55], this court (Cheung CJHC, Lam VP and Poon J) held that an oral hearing should normally be given by the Board where, inter alia, there are issues of credibility crucial to the Board’s decision or where any point is troubling the Board.

22.  It was also confirmed by this court (G Lam JA and Coleman J) in Re Masud Md [2021] HKCA 1449 at [31]-[36] that the rule in Browne v Dunn (1894) 6 R 67 (HL) should apply to proceedings before the Board. If the Board intends to reject the applicant’s evidence on a particular point as being untrue, this should be pointed out to him so that he may have the opportunity to reply to, explain or otherwise deal with the same.

23.  In the instant case, not only did the Board deal with the applicant’s appeal without hearing him orally, it had not given the applicant any opportunity to make representation on whether it was appropriate for the appeal to be disposed of on paper.

24.  Nor did the Board give any or any adequate reasons for determining the appeal on paper. It simply stated in paragraph 3 of the Board’s Decision that:

“基於ST v Betty Kwan [CACV 115/2013] 案例的原則，委員會考慮有關本上訴的材料及提出爭論點的性質後，信納委員會可不經聆訊而作出公平裁定上訴。所以就各方呈交的所有有關文件作出考慮。”

With respect, such statement did not inform the applicant or the Judge of the matters satisfying the Board that the appeal can be justly determined without a hearing.

25.  Without the benefit of the Board’s reason(s), we observe that the Board had, without hearing the applicant, assessed his credibility, and found facts, against him, for example, that the applicant’s creditors would seriously harm or kill him and his wife and son; that they were connected to the triad; that they would be able to find the applicant anywhere in Vietnam, etc.

26.  For these reasons, we take the view that it is reasonably arguable that the Board’s Decision is tainted by procedural unfairness and/or a failure to adhere to high standards of fairness.

Disposition

27.  We allow the appeal and give leave to the applicant to apply for judicial review of the Board’s decision.

28.  In accordance with Order 53 rule 5 of the Rules of the High Court (Cap 4A), the applicant should file and serve an originating summons within 14 days from the date of this judgment.

29.  The costs of the application for leave before the Judge and this appeal, if any, shall be in the cause of the application for judicial review.