DINH KHAC TRUNG v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 167/2021

[2022] HKCA 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 167 OF 2021

(ON APPEAL FROM HCAL NO 1391 OF 2018)

_____________________

__________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  On 1 April 2021, DHCJ K.W. Lung (“the Judge”) refused 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 (“the Board”) dated 6 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 15 August 2017 rejecting the applicant’s claim on BOR 2 risk[1] (“the Director’s BOR 2 Decision”).

2.  On 14 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing. 

3.  Pursuant to the directions of Registrar of Civil Appeals made on 26 May 2021, the applicant should lodge his written submissions on or before 9 June 2021.  He failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his written submissions by that date, he will be deemed to have abandoned his right to rely on written submissions. 

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a Vietnamese national.  He came to Hong Kong illegally by boat on 31 December 2013.  He approached the UNHCR Sub-Office Hong Kong to seek asylum.  He was arrested by police on 5 January 2014.  On 6 February 2014, he lodged his non-refoulement claim on the basis that if refouled, he would be harmed or killed by his creditors because he failed to repay his loan.  The factual background of this case was succinctly summarized by the Judge in [5] of the Form CALL-1 ([2021] HKCFI 844).

6.  By a Notice of Decision dated 9 September 2016, the Director assessed the applicant’s claim on grounds relating to BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him. By the Director’s BOR 2 Decision, the Director assessed the claim on BOR 2 and also determined it against him.

7.  The applicant did not file any appeal/petition against the Notice of Decision dated 9 September 2016.  He only appealed the Director’s BOR 2 decision. He attended an oral hearing on 30 April 2018.  By its decision dated 6 June 2018, the Board dismissed the appeal and confirmed the Director’s BOR 2 Decision.  For the reasons set out in [36] to [45], the Board found significant inconsistencies between the evidence he gave at the screening interview with the immigration officer and at the hearing before the Board, particularly in relation to the alleged attack by his creditors, the amount of the loan, the interest rate and repayment deadline which all went to the crux of his case.  The Board went on to consider relevant Country of origin information (“COI”), state protection and internal relocation at [52] to [62] and noted that under the 2015 Penal Code of Vietnam, the Ministry of Public Security has identified various social and security problems arising from illegal debt collection, and measures have been implemented to address the problem, and therefore the applicant should report his case to Public Security for investigation, and reasonable state protection should be available.  Further, the applicant, with his experience as electrician, fisherman and fish farmer, may relocate to other cities with fishery zones.  For the aforesaid reasons, the applicant’s claim on BOR 2 risk was rejected and his petition was dismissed.

Decision of the court below

8.  On 16 July 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s BOR 2 Decision.  In his supporting affirmation, he reiterated his claim that if he returned to Vietnam, he would be tortured or killed by his creditors because he was unable to repay his debt.   

9.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  By his decision dated 1 April 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13] – [18] of the Form CALL-1 as follows:

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

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI 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 the decision of the Board.”

15. It is obvious that since the Board had rejected his evidence on the facts of his case, he has no factual basis in support of his claim on BOR 2 risk. Although the Board had only considered his appeal on the Director’s Further Decision, which is on BOR 2 risk claim, I find that even if he were to apply for leave to extend time to appeal against his claim on other risks, i.e. Torture risk, BOR 3 risk and Persecution risk, he does not have any reasonable chance of success in his appeal.

16. His ground in support of this application does not assist his application.

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. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

10.  On 14 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision in which he stated that he had taken out a loan from creditors to buy a fishing vessel. Unfortunately, his fishing vessel was destroyed during a typhoon and therefore he could not produce any income to repay his loan.  His creditors threatened to kill him and therefore he escaped to Hong Kong to seek protection.  

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in 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].  For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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 issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(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, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 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, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  The applicant did not in his Notice of Appeal provide any ground of appeal against the Judge’s decision or identify any specific errors, or any other specific potential grounds for reversing the Judge’s decision.  We found nothing in the Notice of Appeal that can be construed as a valid ground of appeal.

13.  The Board rejected the applicant’s claim on BOR 2 risk on the grounds of credibility as his evidence given at the Board’s hearing was significantly inconsistent with that he provided at the screening interview in respect of the material terms of the loan and alleged attacks and injury.  In any event, the Board found that there is reasonable state protection, and internal relocation would be a viable and reasonable option for the applicant.  The Board was entitled to make the findings as it did and the Judge rightly found no valid public law ground to intervene.

14.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

15.  For the above reasons, this appeal is dismissed.