NGUYEN VAN HUONG v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 377 /2023, [2024] HKCA 1098

On appeal from [2023] HKCFI 2941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 377 OF 2023

(ON APPEAL FROM HCAL NO 1544 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 13 November 2023, Deputy High Court Judge To refused to grant leave to the applicant to bring judicial review against the decision of the Torture Claims Appeal Board (“the Board”)  concerning his non-refoulement claim[1].

2.  The applicant is a national of Vietnam.  He entered Hong Kong illegally on 18 August 2015.  He surrendered to the Immigration Department on 20 August 2015 and lodged a non-refoulement claim on the same day.  His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor.

The decisions of the Director and the Board

3.  By a Notice of Decision dated 26 July 2018, the Director of Immigration (“the Director”)  rejected the non-refoulement claim of the applicant on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  The Director considered there is no substantial ground for believing that there will be any real and substantial risk of the applicant being harmed or killed by his creditor upon his return to Vietnam.  The applicant was only verbally threatened by the creditor and was not physically hurt.  He also managed to get away and was not hurt during his stay in Ha Long. There is no evidence that the creditor still has adverse interest on the applicant after the long lapse of time.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates any perceived risk.  

5.  The applicant appealed against the Director’s decision to the Board.  The Board determined the appeal without a hearing pursuant to section 12 of Schedule 1A to the Immigration Ordinance (Cap 115).

6.  The Board found that the applicant had not suffered intense physical or mental suffering and there is no substantial ground to believe that he would be subjected to a genuine and substantial risk of being killed by the creditor upon his return to Vietnam.  The Board further found that the applicant’s fear of ill-treatment relates to a personal and financial matter, not on account of race, religion, nationality, membership of a particular social group or political opinion.  In addition, the Board held that the applicant can relocate to Ho Chi Minh City or Ha Noi City without undue hardship and difficulty.  Thus, the Board rejected the appeal on 3 June 2019.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 5 June 2019 to seek leave to apply for judicial review against the Board’s decision.  He only reiterated the problems he faced in Vietnam without putting forward any grounds for his intended challenge.

The judge’s decision

8.  DHCJ To dealt with the leave application on paper as the applicant did not request for an oral hearing.  The judge held there is no error of law or procedural unfairness in the Board’s decision.  As there is no realistic prospect of success in the applicant’s intended application for judicial review, the judge dismissed the leave application on 13 November 2023.

Grounds of appeal

9.  In the Notice of Appeal and affirmation filed on 20 November 2023, the applicant stated his grounds of appeal as follows:

(1)  If he returns to Vietnam, his life will be seriously threatened or he will probably be killed because the creditors and gangsters in Vietnam are different from those in Hong Kong.  They disregard the law and are willing to kill;

(2)  The Director’s suggestion on internal relocation is completely unfeasible as the applicant will face many difficulties and obstacles;

(3)  With the nationwide social network of the gangsters and their clandestine connections with corrupt people in the government and police apparatus, it is quite possible for the creditor and gangsters to find out the applicant’s new residence;

(4)  The Director did not consider the human rights under the Basic Law or the “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights or International Covenant on Economic, Social and Cultural Rights;

(5)  The Director and the Board “did not see the grounds” to reserve their decisions.

10.  The applicant has submitted a written consent to the appeal to be disposed of on paper without an oral hearing.  Directions were given by the Registrar of Civil Appeals on 20 November 2023 requiring the applicant to lodge skeleton argument on or before 4 December 2023.  The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, he shall be deemed to have abandoned his right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials.  The applicant has not lodged any written submissions by the prescribed time in this appeal.

Legal Principles

11.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.  The applicant’s grounds raised in this appeal have not been raised in his leave application in the court below.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

14.  In any event, the new grounds are just bare assertions without evidence in support.  He failed to point out any error or unfairness in the judge’s decision. There is no viable ground to reverse the judge’s decision on appeal.

15.  As the appeal is devoid of merit, we dismiss it accordingly.