NGUYEN VAN TUOI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMNT CLAIMS PETITION OFFICE

CACV 52/2021

[2022] HKCA 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 52 OF 2021

(ON APPEAL FROM HCAL NO 466 OF 2019)

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J U D G M E N T

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

Introduction

1.  On 28 January 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 11 February 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 13 January 2017 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 8 February 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 13 April 2021, the applicant should lodge his written submissions on or before 28 April 2021.  He failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his written submissions by the deadline, 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 based on the available documents and materials without an oral hearing.

Background

5.  The Applicant is a national of Vietnam. He entered Hong Kong illegally on 9 June 2015.  He surrendered to the Immigration Department on the following day and on 10 June 2015, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or even killed by his creditor as he defaulted on his loan.  The factual background of this case was succinctly summarized by the Judge in [3] of the Form CALL-1 ([2021] HKCFI 175).

6.  By a Notice of Decision dated 13 January 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 him.

7.  The applicant appealed the Director’s decision to the Board.  He attended an oral hearing on 17 December 2018 and by its decision dated 11 February 2019, the Board dismissed the appeal.  For the reasons stated at [49] – [54] of its decision, the Board found that the dispute on loan repayment was private in nature without any state acquiescence or involvement.  It was further found that the applicant had not sustained any serious injury during the 3 incidents of assault and that the creditor had no intention to cause any grievous bodily harm or to kill him. The Board therefore concluded that there is no real risk of harm upon his return to Vietnam.  Further, relevant Country of origin information (“COI”)  suggested that there should be reasonable state protection [55] – [63] and internal relocation is a viable option [65] – [69].  For the aforesaid reasons, the applicant’s non-refoulement claim failed on all applicable grounds.

Decision of the court below

8.  On 19 February 2019, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  He did not provide any grounds of review in his Form 86 and in his supporting affirmation, he merely said that he had not repaid his debt and his life was insecure.  He requested the court to help him.

9.  The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  By his decision made on 28 January 2021, the Judge refused to grant him leave to apply for judicial review and 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 his 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 examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on the latter’s decision.

13. In the present case, the Board did not take issue with the applicant’s claimed primary events. It rejected the applicant’s appeal/ petition based on its assessment of risk he would face, if refouled. Further and in any event, the Board found that state protection would be available to him and internal relocation is a viable and reasonable option for him.

14. As mentioned above assessment of evidence, risk of harm, availability of state protection and internal relocation are primarily within the province of the Board and the Director. This court will not interfere with the decisions 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 request for rehearing of the appeal. There is no reasonably arguable basis to challenge the findings of the Board.

16. Even on the applicant’s own account, the past ill treatment was of low intensity. It did not reach the level of severity required to constitute torture or CIDTP. He did not report the incidents of assault and threatening to the local police or authorities. He had lived in a city uneventfully for 2 years before he left Vietnam. There cannot be any substantial grounds for believing that he would be at real risk of any type of proscribed harm, if refouled. The decision of the Board is eminently 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

10.  On 8 February 2021, the applicant filed his Notice of Appeal against the Judge’s decision on the following grounds:

“the grounds of this appeal are that the gravity of my circumstances have noted 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.”

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.  

13.  The applicant’s complaint that the Director and the Board had not weighed his claim properly was a vague and general accusation without particulars and elaboration and cannot be a valid ground of appeal.  We are satisfied that the Judge was right to find that the Board had properly assessed and considered the applicant’s claim and there were no errors of law or any procedural unfairness or irregularities that would warrant the court’s intervention.

14.  Regarding the applicant’s complaint that he was not provided with an opportunity to plead his case properly, it was baseless and ill-conceived.  The applicant was provided with ample opportunities at the two-tiered screening process before the Director and the Board to provide all the relevant information and supporting evidence for his non-refoulement claim.[5] When he came to the stage of seeking leave to apply for judicial review, he had every opportunity to advance grounds of review in his Form 86 but he failed to do so.  In this appeal, he was directed to lodge his written submissions in support of his appeal but he abandoned his right to do so.  In the circumstances, the applicant’s complaint simply cannot stand.

15.  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 vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

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