VU THI NHUNG v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 58/2021

[2021] HKCA 1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2021

(ON APPEAL FROM HCAL NO 1224 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  On 1 February 2021, DHCJ C P Pang (“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 15 June 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  dated 16 August 2016 and 11 August 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 11 February 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.  On the same day, she lodged a letter with the Court indicating her consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we have proceeded to consider the appeal on paper without an oral hearing.

Background

3.  The applicant is a national of Vietnam.  She entered Hong Kong illegally on 3 March 2015 and was arrested by police the following day.  On 23 March 2015, lodged a non-refoulement claim on the basis that if refouled, she would be harmed or even killed by her creditor, Ms Tiep, who was a loan shark.  The factual background of this case was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2021] HKCFI 255).

4.  By a Notice of Decision dated 16 August 2016 and Notice of Further Decision dated 11 August 2017, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against her.

5.  The applicant appealed the Director’s decision to the Board.  She attended an oral hearing on 2 March 2018 and by its decision dated 15 June 2018, the Board dismissed the appeal.  For the reasons set out in [49] to [74], the Board found that even on her own account of events, her problem is a purely private matter relating to her inability to repay a loan, and that there are no state elements.  Although the applicant claimed to have been punched and kicked by the creditor’s men, and she had received death threats over the telephone, no subsequent actions had been taken by the creditor.  The Board found that the nature and extent of injuries suffered by the applicant did not attain a minimum level of severity and that she faced no genuine and substantial risk of harm or ill-treatment if refouled.  Further, relevant Country of Origin information (“COI”)  suggested there should be reasonable state protection.  For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

Decision of the court below

6.  On 28 June 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision.  In her Form 86, she did not set out any grounds.  In her supporting affirmation, she only repeated her claimed fear that “my creditor and his subordinates could have inflicted more serious harm or even would kill me and they intended to do.”   

7.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  By his decision dated 1 February 2021, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 as follows:

“11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12. When the applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court nevertheless examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

13. In the present case, the Board did not take issue with the applicant’s asserted primary facts about her debt and experience. It however disagreed with the applicant on the assessment of risk flowing from such events. Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection.

14. As mentioned above, assessment of evidence, the risk of harm and availability of state protection are primarily within the province of the Board. This court will not interfere with the decision unless there is a public law ground for the court to do so.

15. The application form and affirmation of the applicant did not demonstrate any procedural irregularity, unfairness or unreasonableness of the Board. It was only a repetition of her claimed fear. There is no reasonably arguable basis to challenge the findings of the Board.

16. Indeed, the applicant’s claim is extremely weak. Even on her own account, the alleged past ill-treatment was of low intensity and frequency indicative of an unreal risk of harm at the most. It came nowhere near the level of severity required by law for the claimed protection. The decisions of the Director and the Board are wholly reasonable.

17.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness.”

Appeal to this Court

8.  On 11 February 2021, the applicant filed her Notice of Appeal against the Judge’s decision.  The ground was that “the gravity of my circumstances have [not] been weighed or realized by both Putative Respondents while considering my non-refoulement claim.  I should be given an opportunity to plead my case properly”.  That does not address the Judge’s decision at all.

9.  In compliance with the Court’s directions of 13 April 2021, the applicant lodged her written submissions on 26 April 2021.  In her written submissions, she quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  She further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  

Legal principles

10.  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

11.  The applicant did not in her Notice of Appeal or written submissions 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.  The Board’s rejection of her claim had been justified even on her own version of events.   

12.  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

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