|
CACV 399/2022, [2023] HKCA 1121
On Appeal From [2022] HKCFI 2995
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 399 OF 2022
(ON APPEAL FROM HCAL NO 635 OF 2019)
____________________
| RE: |
LE VAN LOC alias LE VAN HIEN |
Applicant |
____________________
| Before: |
Hon Cheung and Au JJA in Court |
| Date of Judgment: |
4 October 2023 |
_______________
J U D G M E N T
_______________
Hon Au JA (giving the judgment of the court):
1. This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) set out in the Form CALL-1 dated 29 September 2022, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2995).
2. The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 21 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 April 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.
3. On 5 October 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper. Accordingly, we proceed to consider this appeal on paper based on the available materials.
Background
4. The applicant is a national of Vietnam. He surrendered to the Immigration Department on 4 June 2015. He claimed to have entered Mainland China from Vietnam on 28 February 2015 and illegally entered Hong Kong on 2 March 2015. By the written representation dated 25 May 2017, he raised a non-refoulement claim on the basis that if he returned to Vietnam, he would be harmed or killed by his creditor. Factual details of the applicant’s claim were summarised by the Deputy Judge at [4] - [5] of the Leave Decision.
5. By their decisions respectively dated 30 April 2018 and 21 February 2019, the Director and the Board dismissed his non‑refoulement claim on all applicable grounds including torture risk[1], BOR2 risk[2], BOR3 risk[3] and persecution risk[4]. In essence, having assessed the evidence, both the Director and the Board considered that the applicant failed to substantiate his non-refoulement claim on all applicable grounds.
6. In particular, in dismissing his appeal against the Director’s Decision, the Board found that the applicant’s alleged harm fell short of the requisite level of severity. In any event, the Board held that the alleged dispute was private in nature without any state involvement, and further noted that state protection and internal relocation were both available to the applicant. Accordingly, the Board found that the applicant failed to substantiate on all applicable grounds. The Board thus dismissed his appeal.
The Leave Decision
7. On 6 March 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision. No ground of review was given by the applicant in his Form 86. In his supporting affirmation, the applicant only asserted that he would be harmed or killed by his creditor or his subordinates given his failure to repay the debt. As the applicant did not request an oral hearing, the Deputy Judge considered and determined his application on paper.
8. By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review. In essence, the Deputy Judge did not find any error of law or procedural unfairness in the Board’s Decision, and held that the findings of the Board were neither Wednesbury unreasonable nor irrational. The Deputy Judge thus found that the applicant failed to show that he had any realistic prospect of success in his proposed judicial review.
The Appeal
9. On 5 October 2022, the applicant filed a Notice of Appeal to appeal against the Leave Decision. In his Notice of Appeal, he stated that the gangsters and creditors disregarded the law and that he would be tortured, beaten or even killed. He also claimed that it would be infeasible for him to internally relocate as he was not an active person and might be disadvantaged in the labour market. He further claimed that it would be very dangerous for him to escape to another place in Vietnam given the nationwide social network of gangsters and clandestine connections with corrupt people in the government and police apparatus.
10. Contrary to the directions of the Registrar of Civil Appeals dated 5 October 2022, the applicant failed to lodge any written submissions.
Discussion
11. The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
12. 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’s decision, the appeal should be dismissed. It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.
13. In our view, the applicant’s allegations have no substance. It is noted that the applicant’s complaints in the present appeal are mainly directed at the Board and the Director and do not point to any error of the Leave Decision. His complaints are also all general and vague without specific particulars or evidence in support. They therefore do not constitute proper grounds of appeal. See: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. More importantly, he did not identify any specific error in the Leave Decision. This appeal must fail on this alone.
14. Further, it is trite that assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers. 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: 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].
15. For the reasons given above, the applicant’s appeal has no merit. Accordingly, we dismiss the appeal.
| (Peter Cheung) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
|